NOTICE OF PUBLIC MEETING AND POSSIBLE EXECUTIVE SESSION …€¦ · NOTICE OF PUBLIC MEETING AND...

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NOTICE OF PUBLIC MEETING AND POSSIBLE EXECUTIVE SESSION OF THE

STATE OF ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION

Location: Citizens Clean Elections Commission

1616 West Adams, Suite 110

Phoenix, Arizona 85007

Date: Thursday, July 19, 2018

Time: 9:30 a. m.

Pursuant to A.R.S. § 38-431.02, notice is hereby given to the Commissioners of the Citizens Clean Elections

Commission and the general public that the Citizens Clean Elections Commission will hold a regular meeting, which

is open to the public on July 19, 2018. This meeting will be held at 9:30 a.m., at the Citizens Clean Elections

Commission, 1616 West Adams, Suite 110, Phoenix, Arizona 85007. The meeting may be available for live

streaming online at www.livestream.com/cleanelections. Members of the Citizens Clean Elections Commission will

attend either in person or by telephone, video, or internet conferencing.

The Commission may vote to go into executive session, which will not be open to the public, for the purpose of

obtaining legal advice on any item listed on the agenda, pursuant to A.R.S. § 38-431.03 (A)(3). The Commission

reserves the right at its discretion to address the agenda matters in an order different than outlined below.

The agenda for the meeting is as follows:

I. Call to Order

II. Discussion and Possible Action on Commission Minutes for June 28, 2018 meeting.

III. Discussion and Possible Action on Executive Director’s Report

IV. Discussion and Possible Action on Clean Elections Voter Education and Matters related to Informing

Public of Debates.

V. Discussion and possible action on legal matters involving the Clean Elections Act and/or the Clean

Elections Commission.

A. Arizona Advocacy et. al. v. Reagan et. al.

B. HCR 2007 related litigation

C. Legacy Foundation Action Fund Related litigation

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The Commission may choose to go into executive session on Item V for discussion or consultation

with its attorneys to consider its position and instruct its attorneys regarding the public body's

position regarding contracts, in pending or contemplated litigation or in settlement discussions

conducted in order to avoid or resolve litigation. A.R.S. § 38-431.03(A)(4).

VI. Discussion and Possible Action on Recap of Arizona Voter Crisis Report and related issues.

VII. Public Comment

This is the time for consideration of comments and suggestions from the public. Action taken as a result of

public comment will be limited to directing staff to study the matter or rescheduling the matter for further

consideration and decision at a later date or responding to criticism

VIII. Adjournment.

This agenda is subject to change up to 24 hours prior to the meeting. A copy of the agenda background

material provided to the Commission (with the exception of material relating to possible executive

sessions) is available for public inspection at the Commission’s office, 1616 West Adams, Suite 110,

Phoenix, Arizona 85007.

Dated this 17th

day of July, 2018.

Citizens Clean Elections Commission

Thomas M. Collins, Executive Director

Any person with a disability may request a reasonable accommodation, such as a sign language interpreter,

by contacting the Commission at (602) 364-3477. Requests should be made as early as possible to allow

time to arrange accommodations.

Coash & Coash, Inc.602-258-1440 www.coashandcoash.com

Transcript of Proceedings - June 29, 2018 1

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4 THE STATE OF ARIZONA

5 CITIZENS CLEAN ELECTIONS COMMISSION

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10 REPORTER'S TRANSCRIPT OF PUBLIC MEETING

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14 Phoenix, Arizona

15 June 29, 2018

16 10:02 a.m.

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21 COASH & COASH, INC. Court Reporting, Video & Videoconferencing

22 1802 North 7th Street, Phoenix, AZ 85006 602-258-1440 [email protected]

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24 Prepared by: LILIA MONARREZ, CSR, RPR

25 Certificate No. 50699

ITEM II - June 28th Minutes

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The State of Arizona Citizens Clean Elections Commission

Transcript of ProceedingsJune 29, 2018

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1 PUBLIC MEETING BEFORE THE CITIZENS CLEAN ELECTIONS COMMISSION convened at 10:02 a.m. on June 29, 2 2018, at the State of Arizona, Clean Elections Commission, 1616 West Adams, Conference Room, Phoenix, 3 Arizona, in the presence of the following Board members: Mr. Damien R. Meyer, Chairperson 4 Mr. Mark S. Kimble (Telephonic) Mr. Steve Titla (Telephonic) 5 Ms. Amy B. Chan Mr. Galen D. Paton 6 OTHERS PRESENT: 7 Thomas M. Collins, Executive Director 8 Paula Thomas, Executive Officer (Telephonic) Gina Roberts, Voter Education Manager 9 Alec Shaffer, Web Content Manager Stephanie Cooper, Executive Support Specialist10 Nathan Arrowsmith, Osborn Maledon Joseph LaRue, Attorney General's Office11 Representative Ken Clark, D-24 Joel Edman, Executive Director, AZLN12 Rivko Knox, AZ LWV Kayla Blessinger, AZAN13 Rehit Rajan, AZAN Morgan Dick, AZAN14 Rhonda Barnes, House Lisette Flores, Senate15 Talei Hornback, RIESTER 16 17 18 19 20 21 22 23 24 25

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1 P R O C E E D I N G 2 3 CHAIRMAN MEYER: All right. Good morning. 4 We're going to call to order the Citizens Clean 5 Elections Commission meeting. It's Friday, June 29, 6 2018, at 10:00 o'clock a.m. 7 It looks like we have a quorum here. 8 Tom, is anyone on the phone? 9 MR. COLLINS: I think Commissioner Kimble10 is joining us on the phone. I don't know if he's on11 yet.12 COMMISSIONER PATON: Yes, he's there.13 MR. COLLINS: Okay.14 COMMISSIONER KIMBLE: Yes, I am here.15 CHAIRMAN MEYER: Thank you.16 MR. COLLINS: Okay.17 CHAIRMAN MEYER: Good morning, Commissioner18 Kimble.19 COMMISSIONER KIMBLE: Good morning.20 CHAIRMAN MEYER: So Item Number II on the21 agenda is discussion and possible action on Commission22 minutes for April 19, 2018 and May 10, 2018.23 Any comments or questions on the minute --24 minutes for those meetings?25 COMMISSIONER CHAN: Mr. Chairman, I would

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1 move that we approve the minutes as written. 2 CHAIRMAN MEYER: Is there a second? 3 COMMISSIONER PATON: Second. 4 CHAIRMAN MEYER: All right. We have a 5 motion to approve the minutes. 6 All in favor say aye. 7 (Chorus of ayes.) 8 CHAIRMAN MEYER: Opposed? 9 (No response.)10 CHAIRMAN MEYER: Abstentions?11 (No response.)12 CHAIRMAN MEYER: Okay. The motion carries13 unanimously to approve the minutes.14 Let's go to Item Number III, which is the15 discussion and possible action on the executive16 director's report.17 Tom?18 MR. COLLINS: Yes. Mr. Chairman,19 Commissioners, just to take the highlights, as you can20 see, there is a comprehensive amount of activity going21 on in voter education that Gina and Alec and Stephanie22 are spearheading. We've had -- our debates on Horizon23 have begun. We are starting to work with Apache,24 Coconino and Navajo Counties on voter education25 advertising on KTNN to reach those -- that underserved

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1 community. 2 We are working to expand our 18 in 2018 3 campaign to raise awareness among younger voters. Gina 4 has been invited to present at the American Indian 5 Right to Vote Conference in July. Alec will be 6 presenting at the Municipal Clerks Association Election 7 Conference in July, and then we'll be doing a -- this 8 is a new event for us. 9 The "Capitol Times" has for years hosted a10 thing called the Meet the Candidates event, and that11 event had previously been a paid-for admission event12 for -- you know, people paid for admission. And we13 decided, because of the possibility of addition -- in14 addition to the debates and the -- and the -- and the15 pamphlet, that it would be a good, interesting idea to16 try this year to see if we could make that available to17 the public.18 So we -- we, essentially, became the19 exclusive sponsor of it in order that the entire public20 could -- could participate instead of having to -- have21 paid admission the way they kept time. So it's more of22 a forum and an opportunity for people to come to23 Phoenix or who are in Phoenix and meet -- and meet24 candidates and interact with them.25 So we think that's, you know, consistent

Min-U-Script® Coash & Coash, Inc.602-258-1440 www.coashandcoash.com

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1 with what we've been trying to do. It's not a debate, 2 per se, but it is an opportunity to promote interaction 3 with candidates, which is a key part of what Clean 4 Elections does. So I think that's -- that's sort of 5 the high points there. 6 We will have, just to -- just to -- and 7 this has been in the newspaper. We will -- under the 8 Clean Elections rules, we have a gubernatorial 9 Republican candidate, Former Secretary of State Ken10 Bennett, who is a participating candidate. Governor11 Ducey has declined to participate in that debate. And,12 in accordance with our rules, there will be a 30-minute13 Q and A session where then Mr. Bennett is obligated to14 take questions during. So that will be in the15 beginning of August.16 COMMISSIONER PATON: Question.17 MR. COLLINS: Yes.18 COMMISSIONER PATON: So on the Q and A --19 MR. COLLINS: Yeah.20 COMMISSIONER PATON: -- would that be on21 TV?22 MR. COLLINS: It will be on TV. We think23 that, you know, KAET may or may not have different24 obligations under its own standards to provide time to25 Mr. Ducey if they want to. Our rules are clear -- and

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1 Mr. Ducey was invited to participate, and our rules are 2 clear that the burden here is on Mr. Bennett. He has 3 to take the questions. 4 And our anticipation is that although, 5 obviously, he gets time on air, we don't anticipate 6 those questions will be easy. I mean, I think that Ted 7 Simons -- one of the reasons we've had a long and 8 trusted relationship with Arizona PBS is because Ted is 9 good at bringing out real information from candidates10 and making them ask questions -- answer questions that11 are tough. And in the case of any candidate, there are12 tough questions.13 So we don't -- we don't -- although -- so14 really, as I said, the burden is on Mr. Bennett. He15 has obligated himself under the rules to sit for this,16 and whether or not KAET offers some other time to17 Governor Ducey is their -- you know, that's their18 business. We don't have any problem with that or --19 you know, that's just -- that's just their issue. This20 is more of an issue of complying with our rules.21 COMMISSIONER PATON: Thank you.22 MR. COLLINS: I wanted to raise a couple of23 issues real quick. And I know these -- and I know we24 have a lot to get to later, but, one, I just want to25 call your attention to the "Republic," especially, as

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1 well as other news outlets, have catalogued a number -- 2 a high number of cases involving petitions -- candidate 3 petition signature irregularities. Some of these 4 matters, I believe, are still in appeal. 5 Joe, is that right? 6 MR. LaRUE: Yes, Tom, that is correct. 7 MR. COLLINS: Yes. So we will see how 8 that -- 9 COMMISSIONER TITLA: Tom?10 MR. COLLINS: Yes.11 COMMISSIONER TITLA: Steve Titla. I joined12 the call earlier.13 MR. COLLINS: Oh, good. I didn't hear you.14 Sorry.15 COMMISSIONER TITLA: Mr. Chairman, thank16 you.17 CHAIRMAN MEYER: Just for the record, we18 have -- Commissioner Titla has joined the meeting.19 MR. COLLINS: Wonderful. Thank you.20 Sorry.21 So -- anyway, so that's their -- I think22 that's something to be aware of because, you know, it23 may -- I think that looking at some of the Secretary of24 State's comments there in the article, I will tell you25 that I think that we may see some changes to that

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1 process. It's not entirely clear how those changes 2 will play out but, you know, I think that the -- that 3 the consensus among folks who pay attention to this 4 stuff is that this is -- year was pretty -- pretty 5 extraordinary for that. 6 So I don't know if -- 7 COMMISSIONER PATON: And I have a question. 8 MR. COLLINS: Yes, please. 9 COMMISSIONER PATON: And what -- do we have10 any kind of -- I mean, besides just interest, you know,11 individual interest, do we have any interest, since12 we're Clean Elections --13 MR. COLLINS: Right.14 COMMISSIONER PATON: -- and, obviously,15 that wasn't clean.16 MR. COLLINS: Right.17 COMMISSIONER PATON: Is there -- what kind18 of overlap do we have with the Secretary of State or --19 MR. COLLINS: Right. That's a very good20 question. And, Mr. Chairman, Commissioner Paton, I21 think -- I think it will -- I think the overlap, as22 this develops, will come in two ways. First, under23 16-950 and under the existing Attorney General's24 opinions, the oversight over the review of qualifying25 signatures that go with the $5 slips is done by the


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1 Secretary of State and the County -- County Recorders. 2 That's of statutory -- that's their statutory 3 obligation. 4 However, the Commission does have the 5 authority in its mandate to make suggestions on how to 6 improve the process to make it, you know, cleaner. And 7 so I think that, A, you know, we have some issues that 8 I don't think it's appropriate for us to discuss now in 9 terms of what we may be looking at specifically, but we10 may have some general -- but, generally, I think we11 will want to weigh in on that from a Clean Elections12 perspective.13 And then I think, more generally, because14 of our interaction with signature gathering in all of15 its facets -- because you need to qualify for the16 ballot in order to be funded. I think there's a nexus17 there for us to be constructive. So I think what we'll18 try to do going forward, as much as we can -- that's19 Secretary of State, the Maricopa County Recorder, the20 other recorders -- I think that -- I think, you know,21 Pima, Yavapai, other -- Yuma -- the other -- you know,22 all of the other recorders that are dealing with these23 issues -- I think we do have an opportunity to -- to be24 constructive.25 And I think that is with that mandate, but

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1 it remains to be seen what, you know, kinds of 2 proposals get developed. And we may come to a point 3 where we want to develop our own proposals down the 4 road that may have a nexus with the $5 qualifying 5 process and may have a nexus with the qualifying for 6 the ballot process. 7 We'll just have to -- we'll have to -- 8 we're going to have to play this a little by ear, but 9 it's definitely something that's within our -- to10 directly answer your question, it's definitely within11 our -- both our -- the Comission's express authority to12 make recommendations on proving the process and the13 Commission's duty to ensure that the electoral -- the14 integrity of the electoral process.15 CHAIRMAN MEYER: Commissioner Chan.16 COMMISSIONER CHAN: As long as Commissioner17 Paton has gotten his answer.18 COMMISSIONER PATON: Shoot. Yes.19 COMMISSIONER CHAN: Just a comment on that.20 I find it pretty disheartening that we're seeing this21 many irregularities and an increase, you know, from22 years, but it does happen, unfortunately. And I think23 that the fact that candidates were kind of cut out, so24 to speak, for their actions -- or even if it wasn't25 directly their actions, the people that they allowed to

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1 circulate for them -- I don't know the details of any 2 particular case in this moment, but I think -- you 3 know, I don't want to say the system works, but I mean, 4 I think the system is set up so that these types of 5 irregularities can be caught and made evident. 6 And one of the things is having a healthy 7 and robust system of folks running against each other 8 because it's always, kind of, the loyal opposition or, 9 you know, the opposing candidate that looks through and10 may catch some of these things. So I think when the11 recorders are looking through signatures for the clean12 candidates, that's very -- a very important component.13 MR. COLLINS: Right.14 COMMISSIONER CHAN: But I think it's also15 very important to have, you know, a healthy and robust16 system of people who want to be active in government so17 that we have folks who are keeping an eye on each18 other. I've never felt that way more strongly, I19 think, than I do now that -- that it's very important20 for people to be involved and keep an eye on the folks21 who are running for election.22 And just one last comment with regard to23 this, I believe there are only a few reasons that a24 person is prohibited from running for office, and if25 I'm not mistaken -- and I don't know if Joseph or Tom

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1 might know this off the top of their heads. 2 One of the bars to running for office, even 3 filing for office to run for office, is a campaign 4 fraud, like a signature fraud-type conviction. So 5 that's the other piece here. It's not just that they 6 don't get to run for office. They might get kicked off 7 the ballot for this election. If they're actually 8 convicted by being referred for criminal activity, then 9 I believe that they could be barred for a period of10 years from even filing.11 MR. COLLINS: I'm a little rusty on that.12 I know there's a -- or was a provision of law that said13 that there was certain things that could happen that14 would cause you to be out for five years. I don't know15 if that -- I don't know what the trigger on that is.16 COMMISSIONER CHAN: That might have been a17 campaign finance thing.18 MR. COLLINS: Yeah.19 COMMISSIONER CHAN: I think.20 MR. COLLINS: So I will say this, just to21 add a little more context -- and, Joe, correct me if22 I'm wrong. You know, one of the things that's pending23 at the -- I think the Arizona Supreme Court is an24 appeal by a candidate for the Secretary of State's25 Office over the amount of time that she received to


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1 review a report from the Maricopa County Recorder's 2 Office. 3 The Maricopa County Recorder's Office has 4 taken the position that, really, there's no statutory 5 obligation to -- for them to be doing these reviews 6 and, in effect, inviting the legislature to review 7 these things if they were successful in that argument. 8 So I do think that going forward -- to Commissioner 9 Paton's point -- there's going to be -- you know, that10 case may not be the -- may not resolve that issue, but11 that case is an indicator that there's going to be some12 legislative activity.13 I mean, I think it's safe to say there will14 be some legislative interest here; that coupled with15 Mr. Spencer's comments and the story I provided. I16 think -- I think you'll see some legislative activity17 in this area next year.18 COMMISSIONER PATON: I have a statement, I19 guess.20 Particularly, it looks like the incentive21 for people to pass petitions for monetary gain -- I22 mean, as a job is, obviously, causing the majority of23 this issue. And so, I mean, I don't want to malign24 everybody that's doing this, but when they find25 hundreds and dead people signing up and people that are

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1 out of the country and so on that have no chance to 2 sign, it's pretty disheartening because when it gets to 3 the newspapers and the TV and everything, it -- the 4 average -- the average person thinks that politicians 5 aren't that trustworthy as it is. 6 MR. COLLINS: Right. 7 COMMISSIONER PATON: And, then, do we want 8 to be one of these countries that the electorate 9 doesn't believe that anything legitimate is happening10 anymore? And I certainly don't want to go through11 something like that, and -- so I don't know what we can12 do, but I'm really pretty concerned about that.13 MR. COLLINS: And if I -- I don't want to14 take -- you know, I know we have some other activity,15 but just to, sort of, amplify and validate,16 Commissioner Paton, what you've been saying, one of the17 things the legislature did in 2014, '15, '16, somewhere18 like that, was to prohibit per-signature payment for19 initiative and referendum gathering.20 Now, to your point, they did not do that21 for candidates, and so the tension between those two22 policies is exacerbated by the news that has happened23 this year. So, again, I don't know how the legislature24 will wrestle with that but, you know, they did take25 steps based precisely on your -- or at least, in their

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1 view, based precisely on your view regarding 2 initiatives. Perhaps they will make a similar effort 3 with respect to candidates. It's hard to say, but 4 we'll definitely keep an eye on it. 5 COMMISSIONER PATON: Okay. Thank you. 6 MR. COLLINS: Just real quick, running 7 through issues, we've got the AZN, et al., lawsuit. 8 The summary judgment briefing is ongoing. We have an 9 update on See the Money. It appears the See the Money10 program is -- is now being fed -- the current11 information, by the campaign finance reporting system12 which is good, but we'll continue to keep you apprised13 of that.14 And then --15 COMMISSIONER PATON: I have a question.16 I'm sorry.17 MR. COLLINS: Sure, sure, sure.18 COMMISSIONER PATON: Talking about -- I19 haven't been for a couple --20 MR. COLLINS: Well, none of us have been.21 We didn't have a meeting last month.22 COMMISSIONER PATON: So I read that23 newspaper article about all of that, and we're24 satisfied that things are going well, then, as staff?25 MR. COLLINS: Commissioner -- Chairman

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1 Meyer, Commissioner Paton, I would say this: That the 2 amount of work that has gone into both updating the 3 campaign -- let's back up a second. 4 There's two different systems. There's the 5 campaign finance reporting system into which candidates 6 and others input their information and there's See the 7 Money, which is the public-facing, a search function 8 and -- you know, functionality of that. 9 Because -- as I understand it, because of10 all the rehab of the back-end system, there was a delay11 in connecting it to the front-end system. I had12 extensive conversations with the Secretary of State's13 Office after that story broke. They relayed to me that14 they expected that connection to be made within a week,15 and they did make good on that. I think the next16 campaign finance filing window opens July 5th.17 And so, you know, we'll see, you know, how18 that works, but we've -- we have evaluated this from a19 couple of different perspectives, and as of right now,20 you know, we don't think there's any sort of bad faith21 issue. We think it's more of just -- you know, it's an22 amount of work and trying to get a lot of work done in23 a short period of time. So we think that by the time24 voters are really clued in as we reach people file,25 people have the ballot and the July 5th reporting


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1 deadline comes, our anticipation is that things will be 2 working the way they're anticipated. 3 If that turns out to be different, we'll 4 let you know, but we have had, I would say, productive 5 conversations with the Secretary of State's Office to 6 keep ourselves informed and to keep you informed about 7 where that is. 8 COMMISSIONER PATON: Since we helped -- 9 MR. COLLINS: Right.10 COMMISSIONER PATON: -- pay for this.11 MR. COLLINS: Yeah.12 COMMISSIONER PATON: I think the article13 made it sound like it was shear chaos or -- you know.14 So -- but you don't seem to be too concerned.15 MR. COLLINS: Well, I --16 COMMISSIONER PATON: So I guess I shouldn't17 be.18 MR. COLLINS: Well, I would say this about19 that. I would say that in talking to the Secretary of20 State's Office, I think their view -- and I'm somewhat21 speaking for them and, you know -- is that the22 distinction between CFRS and See the Money is not23 always drawn neatly in press reports, but the more24 important thing to me is to ensure that they are25 continuing to make progress so that by the time we're

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1 at the most critical time, which is coming up here as 2 we enter the meat of the election season, things are 3 functioning. 4 They seem to be responsive to our 5 questions, which is -- which is a good thing. So so 6 long as we continue to be able to have a productive 7 relationship with them and conversation with them 8 around these issues, you know, my -- my anxiety level 9 around this is lower than it otherwise would be.10 COMMISSIONER PATON: Thank you.11 CHAIRMAN MEYER: Commissioner Chan.12 COMMISSIONER CHAN: Thank you,13 Mr. Chairman.14 Commissioner Paton, I'm actually glad you15 brought that up because I think it was last month that16 this news story broke, if I'm not mistaken, and I had17 actually forgotten just because so much has happened18 since then, but I was very disappointed that one of the19 fundamental bases of what I thought See the Money was20 going to be was not happening, which was to be hooked21 into actual real information from the campaign finance22 system.23 I mean, what is the point of See the Money24 if it's not hooked into real actual information? It25 just -- I really actually -- you could have knocked me

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1 over with a feather, I think, when I read that article. 2 And I'm very happy to hear that they have now addressed 3 that. I think this kind of goes to my trust issues 4 that we discussed at length with their office when they 5 asked us for this money to save this project. 6 And, unfortunately, it's just another, kind 7 of, broken step in our -- this Commission's 8 relationship, I think, with that office that this was 9 how they approached it; that they did not think that10 was an important enough piece to have it hooked into11 real time information.12 And so, thank you, Commissioner Paton, for13 reminding me that that was an issue.14 And as I mentioned, Tom, you are the voice15 of reason, and I appreciate that very much.16 MR. COLLINS: You may be the only person17 who thinks that.18 COMMISSIONER CHAN: But I'm -- I just19 wanted to make that statement because I wanted to have20 on the record that I was appalled when I learned that21 that -- I just don't understand how that could even22 have been an option with See the Money.23 MR. COLLINS: Right. Well -- and if I may,24 Mr. Chairman, Commissioner Chan, I think -- I think --25 you know, I think we'll just continue to work through

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1 this. I think that the -- I think there is some 2 pressure on the Secretary's office, and I think that 3 there -- and I think -- my feeling is that -- you know, 4 just from a staff perspective, which is different from 5 a commissioner's perspective is that, you know, my job 6 at this point is to try to keep the lines of 7 communication open until we can -- until something -- 8 you know, so that we can get what we need, you know. 9 And we can -- you know, certainly, you can10 direct -- either you or Commissioner Paton can direct11 me to put this on the agenda as a separate item in the12 future, if you'd like to have a more extensive13 discussion.14 COMMISSIONER CHAN: I think, Mr. Chairman15 and Tom, the thing that's disappointing is that we even16 have to be having this discussion when they came here17 and promised us that this was going to be a particular18 way and then one of the fundamental aspects of it19 wasn't even put in place. So --20 MR. COLLINS: Understood.21 COMMISSIONER CHAN: But having said that,22 thank you.23 And the other thing I'll say is that it24 would be difficult to know what we would even need --25 that we would even need to put it on the agenda


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1 without, you know, reporting, like Dustin Garner has 2 been doing. 3 So, anyway, thank you very much for that. 4 Thank you, Mr. Chairman. 5 MR. COLLINS: Thank you. 6 CHAIRMAN MEYER: And I'll just make a brief 7 comment on that. 8 As far as See the Money, I mean, I'm glad 9 we're part of it. I understand this was a cutting-edge10 piece of technology and new thing that other states are11 doing. I understand there's going to be some bumps in12 the road anytime you try to implement a system like13 that. I'm glad that they're working on it and we're14 going to get this up and running. It's going to do15 what they said it would do. So, I mean, I understand16 anytime you implement systems like this, it's very17 common to have some bumps in the road.18 So I would, I guess, urge some patience19 from my fellow commissioners and let Tom, who is very20 optimistic on this issue, to keep doing what he's21 doing. And I think we're going to get what we -- what22 we were told we were going to get and just -- and I'll23 leave it at that.24 MR. COLLINS: Mr. Chairman, the last item I25 want to highlight is that there is litigation related

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1 to the substance -- well, I should say the procedures 2 by which HCR 2007 was put on the ballot. Oral 3 arguments on the motion for a preliminary injunction 4 filed by -- in the Hoffman v. Reagan matter are 5 July 12th. 6 That's really all I want to highlight. 7 Unless anyone else has questions, I am concluded. 8 CHAIRMAN MEYER: Commissioner Kimble, 9 Commissioner Titla, unless you have questions, we're10 going to move on to the next agenda item.11 COMMISSIONER KIMBLE: I'm good. Thank you.12 CHAIRMAN MEYER: Okay. We're going to bump13 up an item here, public comment.14 Do you want to do now, Tom, or do you want15 to --16 MR. COLLINS: Well, yeah. What I would17 propose would be -- with respect to Item IV, what I18 would propose is that we take -- we'll still need to do19 the public comment that we have noticed, but since we20 take public comment on items, I was going to suggest,21 since we have folks here who are interested in22 addressing this particular item after the legislative23 council met yesterday to pass its summary that goes in24 the publicity pamphlet, we have at least three people25 here who, I believe, are interested in testifying on

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1 that. 2 So I thought it would be best to have them 3 testify prior to going into executive session, 4 although, I think Nate and I recommend that we do go 5 into executive session after that. And so that would 6 be the way I would structure it just -- 7 CHAIRMAN MEYER: So we're going to do 8 public comment on just HCR 207 -- 2007 right now? 9 MR. COLLINS: 2007 publicity pamphlet,10 yeah.11 CHAIRMAN MEYER: And then we'll --12 MR. COLLINS: And then go into executive13 session.14 CHAIRMAN MEYER: All right.15 MR. COLLINS: And, if I could, as a matter16 of preface, just so everybody knows the background,17 yesterday the legislative council met and drafted the18 language that will go in the publicity pamphlet of the19 Secretary of State. As I think everyone knows, that20 language is very important. The courts look to it to21 interpret initiatives and referendums. The voters look22 at it as a way -- it may be the only interaction that23 voters have with the actual text of the legal measures24 that are obligated to -- where they have the25 opportunity to vote on.

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1 And more than that, because it goes out to 2 every household in the state, it is the best way to 3 reach voters of all demographics because -- because 4 everybody gets the mail. 5 So, you know, we can discuss some of the 6 issues with it, but I thought that it might be better 7 to allow -- to kind of put this in order, I'd like -- 8 Representative Ken Clark is the representative from 9 central Phoenix who was -- is on "leg council" and10 offered amendments yesterday, not all of which were11 heard by the council. I think it would be good if12 Representative Clark were able to address the13 Commission first and then maybe Mr. Edman and then14 Rivko, if that works for you. Okay.15 REPRESENTATIVE CLARK: Thank you, Chair,16 members, commissioners. My name is Ken Clark, state17 representative of District 24. I just wanted to make18 myself available, really, for questions. I can -- if19 you'd like, I can go through the two -- the two20 amendments that I offered, neither of which were21 accepted or really seriously debated. I don't -- we22 didn't really push for a vote on either of them because23 I was hoping that we would have a serious conversation24 about them.25 They took parts of one of them, but let me


(6) Pages 22 - 25



10:29:33-10:30:57 Page 26

1 just say first, with the help of our Senate staff, we 2 put these together in an effort to address an 3 overriding problem with the -- with the language, and 4 that was that unlike the two other pamphlet language 5 propositions that went before us yesterday, the one 6 regarding HCR 2007 didn't give any context, really, as 7 to why they were doing what they were doing. 8 So, for instance, the one on retirement 9 issues did give you some amount of knowledge about what10 the system is like right now and what is being changed,11 although they denied that in the committee yesterday.12 It wasn't true. And then the conversation about the13 EASs did give context as to what the law is right now14 and then what the -- what a passing yes/no vote would15 do if that were passed.16 So if you -- if a person were looking at17 that ballot language or the pamphlet language, they18 could possibly come to the conclusion -- I think very19 likely come to the conclusion that the things that the20 legislature is attempting to do in HCR 2007 are not21 already being done by the -- by the Commission.22 And to that point, there were two23 amendments addressing two issues. One was that it24 seemed as if the Commission did not already make its25 rules -- its own rules, have its own rule-making

10:31:01-10:32:30 Page 27

1 authority. Second, it seemed as if the Commission did 2 not already have rules in place deciding what 3 candidates could and could not spend money on, 4 particularly in regards to political parties. 5 So we brought those two issues forward. 6 The only thing that was -- that they kind of took part 7 of was my second amendment that has to do with the role 8 of the Governor's Regulatory Review Council and in -- 9 insofar as they only took, I think, the part that -- I10 think that just kind of said it's a council of six11 members who are appointed by the governor, like that.12 So from my perspective, I think -- I13 think -- I tried to say at the very end of the whole14 meeting as I was explaining my vote on one of the other15 pamphlet language questions -- I tried to draw the16 distinction that we had just spent a large amount of17 time talking about this ESA thing, going into great18 detail, adding language, clarifying language, adding19 context on something for ESAs that ended up being about20 50 lines long, yet one of the big reasons that they21 used not to accept either of my amendments was, well,22 we don't want to make this too long.23 So even had they accepted my amendments in24 full which, you know, of course, they didn't, had they25 accepted those amendments in full, it would have come

10:32:33-10:33:09 Page 28

1 up to something, like, I think, 40-some lines. 2 COMMISSIONER CHAN: Mr. Chairman, 3 Representative Clark, if I could, just to that point, 4 one of the questions I had, even when you started 5 presenting is, is there a limit on the words or lines 6 that the legislative council's summary -- is there any 7 limit on that? 8 REPRESENTATIVE CLARK: I don't know the 9 answer to that question.10 CHAIRMAN MEYER: Yeah, I had that same11 question.12 COMMISSIONER CHAN: Okay. Maybe --13 CHAIRMAN MEYER: Because I think the one --14 HCR 2007 is 14 lines?15 REPRESENTATIVE CLARK: Yeah. I think I've16 got that.17 CHAIRMAN MEYER: Do I have that right?18 REPRESENTATIVE CLARK: Yeah, 14 lines.19 COMMISSIONER CHAN: I mean, certainly if20 the other one is 50 lines, they could have done a21 little more.22 REPRESENTATIVE CLARK: Yeah. Exactly.23 And -- thank you, Commissioner. I think that that24 points to the animosity that the legislature shows25 toward -- for the Commission and on this language.

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1 The point that I made was if you look at 2 the history, the legislature -- of which this meeting 3 yesterday was a subset and very -- I don't know if it's 4 representative of the legislature, but there were ten 5 Republicans and four Democrats. That legislature has 6 historically shown hostility toward the Clean Elections 7 Commission. You can look at the record and see that; 8 whereas, they have shown a warm embrace toward 9 empowerment scholarship accounts.10 And they were happy to go into great detail11 and add context to that one, but they were not to this12 one. And I don't know what that gets you but --13 COMMISSIONER PATON: Excuse me.14 REPRESENTATIVE CLARK: Yeah.15 COMMISSIONER PATON: The ESA, is that --16 does that mean the scholarships?17 REPRESENTATIVE CLARK: Yeah, the EASs.18 COMMISSIONER PATON: Okay.19 REPRESENTATIVE CLARK: So -- and I don't20 know what that gets you in the end. Obviously, I am21 not a legal scholar. And I don't know if that informs22 in any way what could be done at this point, but I23 don't know if there's a much more clear example of a24 legislature that has open hostility toward a Commission25 and, therefore, expresses that hostility in the way


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10:34:24-10:35:32 Page 30

1 that it very misleadingly writes the ballot -- or the 2 pamphlet language. 3 COMMISSIONER CHAN: Mr. Chairman? 4 CHAIRMAN MEYER: Go ahead, Commissioner 5 Chan. 6 COMMISSIONER CHAN: Representative Clark, I 7 think, you know, definitely being -- having worked in 8 elections for years and worked in and around the 9 legislature for years, I'm very familiar with this, you10 know, process. And it's just a political process. And11 so I think there's definitely -- what you're saying, I12 think, is accurate on many levels. I know that there's13 a lot of animosity from some legislators toward the14 Commission.15 Unfortunately, for the Commission's, you16 know, feeling -- well, I guess I can't speak for the17 Commission yet, but unfortunately, from my feelings18 about this summary and about this bill, since I'm19 actually one of the plaintiffs in the other lawsuit20 that -- in the lawsuit that's pending right now, you21 know, having ten Rs on the committee, I'm sure they all22 feel strongly about the Clean Elections role.23 And, frankly, I will -- I want to, kind of,24 give some credit to Commissioner Paton because I know25 when this Commission considered rules regarding using

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1 Clean Election monies for -- to pay political parties 2 for services, he expressed concern that we would have 3 this kind of clap back and here it is. So everything 4 is political. Everything is -- in that sense, you 5 know, can be biased, in my opinion, you know. 6 I think -- I'm sure I want to -- I think 7 when legislators come to write the summary, they're 8 definitely coming from their own -- we all have our own 9 biases. So they're coming from their biased space, and10 I think when I read this summary, I was sorrily11 disappointed in it, but I understand, you know, the --12 how this comes to be. And so, obviously, thank you so13 much for your time and being here today and, kind of,14 going over with us your two amendments.15 I didn't have an opportunity yet to watch16 the committee meeting or even look at your two17 amendments, and I would -- I'd really be interested in18 looking at those as well. So just thank you, and I19 just wanted to kind of validate what you're saying.20 REPRESENTATIVE CLARK: Well, Commissioner21 grab a soda and some popcorn because it's a lot of fun.22 COMMISSIONER CHAN: Okay. Thank you.23 CHAIRMAN MEYER: Commissioner Paton, do you24 have a comment?25 COMMISSIONER PATON: No. I mean, my

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1 inclination during -- you know, when we set our rules 2 was that this was going to happen and it was going to 3 be more restrictive than what -- because of them not 4 being happy with -- with our rules. And I'm not happy 5 with the GRRC being lumped in with this, and now I'm 6 just not happy with the whole situation, actually. 7 REPRESENTATIVE CLARK: If I could, there 8 was some discussion, both during the ESA issue and this 9 yesterday, about our job as legislators to present an10 impartial -- impartial language regarding -- and I11 don't know how anybody can believe that leaving out12 these two very critical things could be in any way13 considered impartial. I obviously -- I have my14 opinion. I believe it's a power grab. I believe that15 the governor, in an attempt to influence a Commission16 that he does not like, is trying to, with his friends17 in the legislature, fold this under the Governor's18 Regulatory Review Council.19 I would not try to put that in this20 language, but I would like people to be able to21 understand the very basics here, that the Commission22 already has successful rules in place and has23 rule-making authority as set up by a proposition that24 was passed by the voters. And that's it. All you have25 to do is say that, and I think people will fully

10:38:37-10:39:32 Page 33

1 understand what's happening. 2 CHAIRMAN MEYER: Commissioner Kimble or 3 Commissioner Titla, do you have any questions for 4 Representative Clark? 5 COMMISSIONER TITLA: No comments. 6 COMMISSIONER KIMBLE: No. I don't think I 7 do at this point. Thank you. 8 CHAIRMAN MEYER: Representative Clark, 9 thank you. I will just say I appreciate you being10 here. I appreciate your perspective, your context and,11 I mean, from my chair -- and I think I'll safely12 include Commissioner Chan's chair, I mean, you're13 preaching to the choir -- a choir of two, anyway. So14 thank you for your comments. We'll take them into15 consideration, and unless you have anything more to16 offer, we appreciate that.17 REPRESENTATIVE CLARK: Thank you.18 COMMISSIONER PATON: Thank you.19 CHAIRMAN MEYER: Next up, Tom?20 MR. COLLINS: Yeah, we're going to --21 CHAIRMAN MEYER: I forget the order.22 MR. COLLINS: Yeah. We're going to have --23 Joel and Rivko can fight to go -- over who's next, I24 guess.25 MR. EDMAN: It's yours.


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10:39:32-10:40:41 Page 34

1 CHAIRMAN MEYER: Let's not have a -- 2 MR. EDMAN: I don't know if I'm going to 3 fight Rivko. 4 Yeah, Mr. Chairman, Commissioners, I'm Joel 5 Edman, Arizona Advocacy Network. As you know, we're 6 longtime friends of Clean Elections and the Commission 7 and have played several roles now in this saga here, 8 sort of. So we're active at the legislative session, 9 trying to oppose HCR 2007, along with the League who10 actually just filed an amicus brief in the case11 challenging it under the single subject rule, and we12 were there at "leg council" yesterday.13 And so I'll just start, I think, by saying14 that I think Representative Clark's characterization of15 how things went and sort of the summary of what16 happened, I agree with all of that. And so I won't17 repeat it, but just try to add a couple of points.18 You know, there was a lot of discussion19 about, oh, we can't add these couple of sentences; it20 will make it too long and it needs to be concise. And21 it's true that they have an obligation to be concise22 but also to be clear, and there can be a tradeoff at23 times there, right? And I think that there's a couple24 of instances of where moving towards being more concise25 is misleadingly incomplete.

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1 And, for example, at the top of the 2 language here, you know, it explains what the Clean 3 Elections Act is very briefly in a short parenthetical 4 that only highlights the public funding aspect of Clean 5 Elections, not your voter education activities, not 6 your authority to regulate independent expenditures, 7 nonparticipating candidates. And, of course, those 8 last pieces are really where this issue comes from, 9 right?10 That's been the fight with GRRC over the11 last several years. It has really been about that12 aspect of the Clean Elections program, and since that13 is, I think, the fundamental change that would be made14 by this measure to put the Commission, at least15 arguably -- I'm sure there will be legal fights at16 first, but under these sort of auspices of GRRC, that's17 really the ball game here, right?18 And so to not tell voters or not signal to19 voters the Clean Elections is more than, you know,20 handing out checks to candidates, they do a lot of21 other things that would also be affected by that22 change, I think is misleadingly incomplete. And I know23 that was something that Representative Clark was24 pushing to have changed, to have just, you know, a25 sentence or two saying the other things the Clean

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1 Elections does. 2 You know, the -- in the voucher, Prop 305, 3 the ESA measure, I didn't stick around for hours of 4 debate that happened there, but the draft had, you 5 know, a paragraph or two at the top explaining what the 6 EASs are. And, you know, that sort of context is 7 appropriate for something that voters aren't 8 necessarily going to have all, you know, at the top of 9 their head. And, you know, these are complicated10 changes. To understand how they actually play out is11 important.12 And then I think, you know, the -- as part13 of that, in that parenthetical, you know, it says14 voluntary system of public funding of election15 campaigns for candidates. And, of course, that's16 correct. That in itself leaves out an important aspect17 of the public funding piece. Candidates give something18 up to get that, you know.19 They -- as Mr. Collins was explaining, they20 have certain obligations to show up to debates. They21 can't raise money from certain sources of people,22 right? They can only raise a limited amount of private23 money. They have an expenditure cap. You know, it's24 not just you show up and say give me some money. And,25 you know, if you don't have that background knowledge,

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1 that -- just this phrase here makes it sound like it's, 2 well, voluntary; I can show up and get public funding. 3 And I think that kind of colors, potentially, in 4 people's minds their impression of the Clean Elections 5 system if that's all the information they have. 6 And then the other piece, as -- you know, 7 Representative Clark already mentioned this but, you 8 know, on Point 2 here that the Commission would be 9 required to follow rule-making requirements without any10 context that you already do, of course, have your own11 rule-making requirements that are in some way similar12 and some ways inconsistent with, you know, the13 Administrative Procedures Act, but it sort of suggests14 without any context that you have just been able to do15 whatever you want from, you know, day one until now.16 And I think that is, you know, also17 misleadingly incomplete. I think the -- adding "except18 as currently provided by law," I don't know --19 CHAIRMAN MEYER: That tells no one20 anything.21 MR. EDMAN: Exactly.22 COMMISSIONER CHAN: I wasn't even sure what23 that meant.24 CHAIRMAN MEYER: It's because it doesn't25 mean anything.


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10:43:50-10:44:45 Page 38

1 COMMISSIONER CHAN: Yeah, it doesn't mean 2 anything. 3 MR. EDMAN: Yeah, I don't -- I agree. I 4 don't think that helps at all. 5 CHAIRMAN MEYER: Pardon the informality 6 there. 7 MR. EDMAN: No, no, no. So -- I know. I 8 thinks that's -- those are really all the points I 9 wanted to make. I'm happy to take any questions on10 sort of thoughts on what happened yesterday or this11 whole process.12 CHAIRMAN MEYER: I just want to make a13 quick point. On the language that says "except as14 currently provided by law," I mean, the point of these15 summaries is to give voters a fair summary that's16 unbiased of what the law is. So when you say "except17 as currently provided by law," it's nonsensical18 completely.19 Commissioner Chan?20 COMMISSIONER CHAN: Thank you,21 Mr. Chairman.22 First of all, I wanted to mention, Tom23 pointed out to me that staff had included24 Representative Clark's amendments in our packet. So we25 do have them.

10:44:46-10:45:40 Page 39

1 Did you have any feeling -- are you 2 familiar with the amendments that Representative Clark 3 was going to offer yesterday or discussed yesterday? 4 MR. EDMAN: Yes. 5 COMMISSIONER CHAN: Do you have any 6 feelings about either of those amendments? Did you, 7 like, maybe separate them out? Could you kind of tell 8 us what you think about -- if those would have been an 9 improvement, as far as giving a little more10 information?11 MR. EDMAN: Yeah, Mr. Chair, Commissioner12 Chan --13 COMMISSIONER CHAN: Do you need to see14 them?15 MR. EDMAN: Yeah. I don't have them in16 front of me. I mean, I know that, generally, I think17 they provided the sort of context that was needed. I18 mean, I think, looking here at Amendment 1, yeah, the19 Citizens Clean Elections act as a system of public20 funding and then adds -- sorry -- voter education and21 campaign finance enforcement, you know, the other sort22 of main aspects of the program. And that, I think,23 gets to that problem.24 I didn't mention the [inaudible] that25 Representative Clark did that, you know, the Commission

10:45:41-10:46:46 Page 40

1 already has rules -- and that's also mentioned here in 2 Amendment 1 -- rules that are in the same vein as 3 what's being changed here. And I think that -- well, I 4 think, you know, Commissioner Paton, you were right to 5 predict that there would be sort of a backslash from 6 adopting, let's say, less restrictive rules than the 7 legislature would have liked. 8 I think it's still useful context for 9 voters to know there are rules, right? It's not just,10 you know, there's nothing in place right now and that11 we're going to impose some rules. So I think that12 would have been good context.13 The -- and then Amendment 2, yeah, as it14 explains, the Clean Elections, you know, already has a15 rule-making process, I think, that you all go through.16 And, you know, I think that that's also an important,17 you know, point to make for voters that it's not sort18 of, you know, lawless, right? That there is a process19 here and that this would mean changing the process.20 And I think, also -- you know, and this may21 not be appropriate to include in an analysis or not,22 but since that process is inconsistent with the23 Procedures Act -- Mike Braun from the "leg council"24 yesterday, when he testified, sort of had to speculate25 as to how those two systems would be merged together.

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1 I think voters, you know, may want to know that there 2 could likely be some litigation or at least just legal 3 costs to the state in figuring out what the rules are 4 from item to item. 5 I don't know if that's appropriate for this 6 kind of analysis or not, but it's important background 7 information. 8 COMMISSIONER CHAN: Thank you. 9 MR. EDMAN: Thank you.10 CHAIRMAN MEYER: Thank you.11 Any other questions for Mr. Edman?12 (No response.)13 MR. EDMAN: Thank you.14 CHAIRMAN MEYER: Commissioner Kimble,15 Commissioner Titla, any questions?16 COMMISSIONER KIMBLE: No, thank you.17 COMMISSIONER TITLA: No, no comment. Thank18 you.19 CHAIRMAN MEYER: And Ms. Knox?20 MS. KNOX: Good morning, Chairman Meyer and21 members of the Commission and staff. I'm Rivko Knox.22 I'm representative -- representing the nonpartisan23 League of Women Voters of Arizona. I've spoken many24 times at this Commission.25 I want to start by, kind of, maybe throwing


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10:47:39-10:48:55 Page 42

1 in a little humor by saying this reminds me a lot of 2 something I heard with another board that I've been 3 involved in where the saying was everything has been 4 said but not everyone said it. And so, in this case, I 5 think pretty much everything has been said, but I 6 haven't had the chance to say my part yet. 7 So, anyway, I did show up yesterday and -- 8 representing the League. I wanted to say that the 9 process was very confusing. And I have sat in many10 legislative committees, but the way that it worked, I11 had no idea that it would be this long debate. And12 then they would -- before they took votes, they would13 ask for the public comment. It was a very confusing14 process to begin with.15 I have not had a chance to see16 Representative Clark's amendments, but what I planned17 to say was very similar to that. And so, of course, I18 appreciated what he had to say, and it was very well --19 much better phrased than what I think I said and with,20 you know, appropriate legal background, et cetera,21 et cetera.22 It was -- to me there was no question but23 that when there was no -- I love the word that24 Representative Clark used: context. When there was no25 explanation of the current status, there was no way for

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1 the public to know what was being changed. And I 2 pointed out, when I spoke, I had not read the 3 pension -- the first item on the agenda because, 4 truthfully, I don't know enough about pensions to have 5 had an opinion before that. And the League does not 6 have an opinion. 7 Although I will read it before I vote in 8 November, I saw no point in downloading it and reading 9 it, but I have read the Proposition 305 because,10 truthfully, the League does have a position on that.11 And very clearly there were sentences that started the12 current situation is, currently this is, and they would13 not allow that. So it was very frustrating. I pointed14 out that the omission of the current situation was very15 distorting and kept it from being clear and impartial,16 in my opinion.17 I think the whole issue -- and I pointed18 out, again, in my testimony that prior to my coming and19 observing and having a chance just to speak -- thank20 you -- to the Clean Elections Commission, I would have21 had no idea what GRRC was. When I reported to the22 League of Women Voters of Arizona board, they were,23 like, what -- I have always had to clarify what this24 was and the difference between a bipartisan or, in25 your -- bipartisan/nonpartisan board the way you are

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1 and the ways that you are appointed compared to the 2 GRRC. 3 So -- and I also wanted to add, in relation 4 to what you said, Commissioner Paton, that from what I 5 understand, the tension or disagreements between GRRC 6 and the Clean Elections Commission came about well 7 before the change in the expenditure rules for use of 8 Clean Election money to purchase services from 9 political parties. So I think it preceded that.10 So it was -- it was disturbing. I think11 people, if the language remains the same, will not have12 the opportunity to really be informed -- voters -- when13 they vote.14 I will also add, by the way, that the15 League has already submitted a statement to the16 Secretary of State's Office. We have not seen the17 language that was proposed yesterday. Although I think18 we cover quit of bit, but I think if we had known how,19 bluntly speaking, in my opinion, distorted it was, by20 supposed brevity -- or conciseness was the word they21 used -- we might have reworded some of our argument,22 but we've already submitted a statement in23 opposition -- I shouldn't say it's for -- in opposition24 to HCR 2007.25 So is there any -- any questions? Okay.

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1 CHAIRMAN MEYER: I don't have any. 2 Do any other commissioners? 3 (No response.) 4 CHAIRMAN MEYER: Okay. Thank you, 5 Ms. Knox. We're always -- always glad to hear your 6 perspective. 7 So at this time, Tom, I think -- 8 MR. COLLINS: Right. So -- 9 CHAIRMAN MEYER: We'll move to --10 MR. COLLINS: Mr. Chairman, yeah, unless11 there's anybody else who wants to make public comment12 before, I think that what we would like to do -- what I13 would recommend we do is we have to make some decisions14 about what, if anything, to do now. And, in order to15 do that, we need to have some discussion with our legal16 counsel. So I would recommend someone make a motion to17 go into executive session.18 CHAIRMAN MEYER: I will move that we go19 into executive session.20 Is there a second to the motion?21 COMMISSIONER CHAN: I second it.22 CHAIRMAN MEYER: We have a motion to go23 into executive session.24 All in favor?25 (Chorus of ayes.)


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1 CHAIRMAN MEYER: All opposed? 2 COMMISSIONER TITLA: Aye. 3 CHAIRMAN MEYER: Okay. Just to confirm, 4 Commissioner Titla, are you opposing going into 5 executive session? 6 COMMISSIONER TITLA: No. I said aye. 7 CHAIRMAN MEYER: Okay. I went too fast. 8 So all opposed, aye -- or all in favor, 9 aye.10 (Chorus of ayes.)11 CHAIRMAN MEYER: Any opposition?12 (No response.)13 CHAIRMAN MEYER: Okay. None. Okay.14 Motion carries. We are in -- we'll go into executive15 session.16 (The following section of the meeting is in17 executive session and bound under separate cover.)18 * * * * *19 (End of executive session. Public meeting20 resumes at 11:26 a.m.)21 CHAIRMAN MEYER: Okay. We are back from22 executive session. Thank you, everyone.23 Is there any motion to be made out of24 executive session?25 COMMISSIONER CHAN: Mr. Chairman, I move

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1 that we direct counsel and the executive director to 2 take such legal actions necessary to ensure that a 3 fair, legal and accurate summary of HCR 2007 is 4 included in the State's publicity pamphlet. 5 CHAIRMAN MEYER: Is there a second? 6 COMMISSIONER PATON: Second. 7 CHAIRMAN MEYER: We have a motion pending. 8 All in favor of that motion say aye. 9 (Chorus of ayes.)10 CHAIRMAN MEYER: Commissioner Titla --11 COMMISSIONER TITLA: Yeah, aye.12 CHAIRMAN MEYER: Commissioner Kimble?13 MR. COLLINS: Did we lose Kimble?14 CHAIRMAN MEYER: Commissioner Kimble, was15 your vote an aye?16 MS. THOMAS: It looks like he dropped off17 the line. I don't see him on the line.18 CHAIRMAN MEYER: Okay. Do we want to try19 to get him back for this vote?20 MS. THOMAS: Yes, sir. One moment, please.21 MR. COLLINS: Okay.22 MS. THOMAS: I believe he's on.23 Commissioner Kimble, are you back on the24 line?25 One second.

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1 I'm trying to reach him, but it's busy. So 2 I don't know if he's -- if he went into a non-signal 3 area, but give me one minute. 4 THE OPERATOR: Mr. Kimble has rejoined. 5 CHAIRMAN MEYER: Mr. Kimble -- Commissioner 6 Kimble, are you on the line? 7 COMMISSIONER KIMBLE: Yeah. I got dropped 8 and then I couldn't get back on. 9 CHAIRMAN MEYER: No problem. I just want a10 clean record on this motion.11 So currently there is a motion on the12 table, a motion that the Commission direct legal13 counsel and the executive director to take such legal14 actions necessary to ensure that a fair, legal and15 accurate summary of HCR 2007 is included in the State's16 publicity pamphlet. That motion was made by17 Commissioner Chan. It was seconded by Commissioner18 Paton. So now I want to call a vote for this again.19 All in favor of the motion, vote aye,20 please.21 (Chorus of ayes.)22 CHAIRMAN MEYER: So we have five ayes.23 Any opposition?24 (No response.)25 CHAIRMAN MEYER: Any abstention?

11:31:08-11:32:14 Page 49

1 (No response.) 2 CHAIRMAN MEYER: Okay. The motion carries 3 5 to 0. 4 And I just want to state that the legal 5 action the Commission will be taking is not to prevent 6 a vote on HCR 2007. We have no issue with this going 7 to the ballot. Rather, we are going to take action to 8 ensure that there will be a fair, non-partisan and 9 informed vote on this issue. This action we're taking10 is consistent with our duties as a Commission, which is11 to maintain and protect the integrity of the government12 of this state.13 If any other commissioners have a comment14 they'd like to make, please do so.15 (No response.)16 CHAIRMAN MEYER: Okay. Now we'll move on17 to -- is there any other public comment today from18 those in attendance?19 Ms. Knox.20 MS. KNOX: I'll be very brief. Again, this21 is Rivko Knox on behalf of the League of Women Voters22 of Arizona.23 When I spoke earlier, I was focusing,24 obviously, on yesterday's legislative council. I25 wanted just, also, as kind of a private citizen, to


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1 mention that I have -- I attended my legislative 2 district's Clean Election debate which was quite well 3 attended. Luigi Depart [phonetic], the moderator, did 4 an outstanding job, and I've watched every one of the 5 Horizon debates. And I think they were really good. 6 And I would like to compliment the 7 Commission for -- and staff for how this has been 8 organized. And I do agree that Ted Simons was asked 9 very difficult -- or, shall we say, challenging10 questions that really get to the heart of, I think,11 what the particular office is supposed to do and how12 the various candidates feel about what their roles13 would be if elected.14 So thank you.15 CHAIRMAN MEYER: Thank you.16 Any other public comment?17 (No response.)18 CHAIRMAN MEYER: All right. Hearing19 none --20 MR. COLLINS: Motion to adjourn?21 CHAIRMAN MEYER: -- is there a motion to22 adjourn?23 COMMISSIONER CHAN: Do we need to do this24 one?25 MR. COLLINS: What?

11:33:17-11:33:39 Page 51

1 COMMISSIONER CHAN: The proposed meeting 2 dates? 3 CHAIRMAN MEYER: Oh, the meeting dates. 4 That's right. 5 COMMISSIONER CHAN: Do we need to do that 6 or -- 7 MR. COLLINS: Yeah. I guess -- 8 CHAIRMAN MEYER: Yeah. 9 MR. COLLINS: Yeah, I guess we do need to10 do that.11 CHAIRMAN MEYER: Oh, I'm sorry. What?12 MR. COLLINS: We've forgot about the13 meeting dates.14 Do you all agree --15 CHAIRMAN MEYER: Oh, the meeting dates16 issue.17 COMMISSIONER CHAN: That's just Item V.18 MR. COLLINS: Yeah. Do you want to move on19 the --20 CHAIRMAN MEYER: Forgive me. I missed21 Item V and the discussion and possible action on22 proposed meeting dates.23 COMMISSIONER CHAN: How do I do that?24 MR. COLLINS: Just move them.25 COMMISSIONER CHAN: Could I -- I'll move

11:33:41-11:34:18 Page 52

1 that we adopt these meeting dates for the remainder of 2 the year. 3 CHAIRMAN MEYER: I'll second that motion. 4 All in favor of the motion to approve the 5 meeting dates say aye. 6 (Chorus of ayes.) 7 CHAIRMAN MEYER: Any opposition? 8 (No response.) 9 CHAIRMAN MEYER: Abstentions?10 (No response.)11 CHAIRMAN MEYER: Motion carries12 unanimously.13 Now I will ask for a motion to adjourn the14 meeting.15 COMMISSIONER CHAN: I move that we adjourn16 our meeting.17 CHAIRMAN MEYER: Is there a second?18 COMMISSIONER PATON: Second.19 CHAIRMAN MEYER: All right. All in favor20 of adjourning the meeting say aye.21 (Chorus of ayes.)22 CHAIRMAN MEYER: Any opposition?23 (No response.)24 CHAIRMAN MEYER: Abstentions?25 (No response.)

11:34:18-11:34:20 Page 53

1 CHAIRMAN MEYER: All right. We are 2 adjourned. 3 Thank you, everybody. 4 (Whereupon, the proceedings concluded at 5 11:34 a.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


(13) Pages 50 - 53



Page 54

1 STATE OF ARIZONA ) 2 COUNTY OF MARICOPA ) 3 BE IT KNOWN the foregoing proceedings were 4 taken by me; that I was then and there a Certified 5 Reporter of the State of Arizona, and by virtue thereof 6 authorized to administer an oath; that the proceedings 7 were taken down by me in shorthand and thereafter 8 transcribed into typewriting under my direction; that 9 the foregoing pages are a full, true, and accurate 10 transcript of all proceedings and testimony had and 11 adduced upon the taking of said proceedings, all done to 12 the best of my skill and ability. 13 I FURTHER CERTIFY that I am in no way 14 related to nor employed by any of the parties thereto 15 nor am I in any way interested in the outcome hereof. 16 DATED at Phoenix, Arizona, this 30th day of 17 June, 2018. 18 19 ______________________________ LILIA MONARREZ, RPR, CR #5069920 21 22 23 24 25


(14) Page 54



$

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[inaudible] (1) 39:24[phonetic] (1) 50:3

A

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36:3article (4) 8:24;16:23; 18:12;20:1aspect (3) 35:4,12; 36:16aspects (2) 21:18; 39:22Association (1) 5:6attempt (1) 32:15attempting (1) 26:20attendance (1) 49:18attended (2) 50:1,3attention (2) 7:25;9:3Attorney (1) 9:23August (1) 6:15auspices (1) 35:16authority (5) 10:5; 11:11;27:1;32:23;35:6available (2) 5:16; 25:18average (2) 15:4,4aware (1) 8:22awareness (1) 5:3aye (11) 4:6;46:2,6,8,9; 47:8,11,15;48:19;52:5, 20ayes (8) 4:7;45:25; 46:10;47:9;48:21,22; 52:6,21AZN (1) 16:7

B

back (6) 17:3;31:3; 46:21;47:19,23;48:8back-end (1) 17:10background (4) 24:16; 36:25;41:6;42:20backslash (1) 40:5bad (1) 17:20ball (1) 35:17ballot (8) 10:16;11:6; 13:7;17:25;23:2;26:17; 30:1;49:7barred (1) 13:9bars (1) 13:2based (2) 15:25;16:1bases (1) 19:19basics (1) 32:21became (1) 5:18begin (1) 42:14beginning (1) 6:15begun (1) 4:23behalf (1) 49:21Bennett (4) 6:10,13;7:2, 14besides (1) 9:10best (2) 24:2;25:2better (2) 25:6;42:19biased (2) 31:5,9biases (1) 31:9big (1) 27:20bill (1) 30:18

bipartisan (1) 43:24bipartisan/nonpartisan (1) 43:25bit (1) 44:18bluntly (1) 44:19board (3) 42:2;43:22, 25both (3) 11:11;17:2; 32:8bound (1) 46:17Braun (1) 40:23brevity (1) 44:20brief (3) 22:6;34:10; 49:20briefing (1) 16:8briefly (1) 35:3bringing (1) 7:9broke (2) 17:13;19:16broken (1) 20:7brought (2) 19:15;27:5bump (1) 23:12bumps (2) 22:11,17burden (2) 7:2,14business (1) 7:18busy (1) 48:1

C

call (4) 3:4;7:25;8:12; 48:18called (1) 5:10came (2) 21:16;44:6campaign (9) 5:3;13:3, 17;16:11;17:3,5,16; 19:21;39:21campaigns (1) 36:15can (19) 4:19;10:18; 12:5;15:11;21:7,8,9,9, 10;25:5,18,19;29:7; 31:5;32:11;33:23; 34:22;36:22;37:2candidate (6) 6:9,10; 7:11;8:2;12:9;13:24Candidates (15) 5:10, 24;6:3;7:9;11:23; 12:12;15:21;16:3;17:5; 27:3;35:7,20;36:15,17; 50:12cap (1) 36:23Capitol (1) 5:9carries (4) 4:12;46:14; 49:2;52:11case (6) 7:11;12:2; 14:10,11;34:10;42:4cases (1) 8:2catalogued (1) 8:1catch (1) 12:10caught (1) 12:5cause (1) 13:14causing (1) 14:22central (1) 25:9certain (3) 13:13;36:20, 21

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(55) $5 - Clark



42:24Clark's (3) 34:14;38:24; 42:16Clean (24) 3:4;6:3,8; 9:12,15;10:11;12:11; 29:6;30:22;31:1;34:6; 35:2,4,12,19,25;37:4; 39:19;40:14;43:20; 44:6,8;48:10;50:2cleaner (1) 10:6clear (6) 6:25;7:2;9:1; 29:23;34:22;43:15clearly (1) 43:11Clerks (1) 5:6clued (1) 17:24Coconino (1) 4:24COLLINS (53) 3:9,13, 16;4:18;6:17,19,22; 7:22;8:7,10,13,19;9:8, 13,16,19;12:13;13:11, 18,20;15:6,13;16:6,17, 20,25;18:9,11,15,18; 20:16,23;21:20;22:5, 24;23:16;24:9,12,15; 33:20,22;36:19;45:8, 10;47:13,21;50:20,25; 51:7,9,12,18,24colors (1) 37:3coming (4) 19:1;31:8,9; 43:18Comission's (1) 11:11comment (14) 11:19; 12:22;22:7;23:13,19, 20;24:8;31:24;41:17; 42:13;45:11;49:13,17; 50:16comments (5) 3:23; 8:24;14:15;33:5,14Commission (27) 3:5, 21;10:4;25:13;26:21, 24;27:1;28:25;29:7,24; 30:14,17,25;32:15,21; 34:6;35:14;37:8;39:25; 41:21,24;43:20;44:6; 48:12;49:5,10;50:7Commissioner (113) 3:9,12,14,17,19,25; 4:3;6:16,18,20;7:21; 8:9,11,15,18;9:7,9,14, 17,20;11:15,16,16,18, 19;12:14;13:16,19; 14:8,18;15:7,16;16:5, 15,18,22,25;17:1;18:8, 10,12,16;19:10,11,12, 14;20:12,18,24;21:10, 14,21;23:8,9,11;28:2, 12,19,23;29:13,15,18; 30:3,4,6,24;31:20,22, 23,25;33:2,3,5,6,12,18; 37:22;38:1,19,20;39:5, 11,13;40:4;41:8,14,15, 16,17;44:4;45:21;46:2, 4,6,25;47:6,10,11,12,

14,23;48:5,7,17,17; 50:23;51:1,5,17,23,25; 52:15,18Commissioners (6) 4:19;22:19;25:16; 34:4;45:2;49:13commissioner's (1) 21:5Commission's (3) 11:13;20:7;30:15committee (3) 26:11; 30:21;31:16committees (1) 42:10common (1) 22:17communication (1) 21:7community (1) 5:1compared (1) 44:1completely (1) 38:18complicated (1) 36:9compliment (1) 50:6complying (1) 7:20component (1) 12:12comprehensive (1) 4:20concern (1) 31:2concerned (2) 15:12; 18:14concise (3) 34:20,21,24conciseness (1) 44:20concluded (2) 23:7; 53:4conclusion (2) 26:18,19Conference (2) 5:5,7confirm (1) 46:3confusing (2) 42:9,13connecting (1) 17:11connection (1) 17:14consensus (1) 9:3consideration (1) 33:15considered (2) 30:25; 32:13consistent (2) 5:25; 49:10constructive (2) 10:17, 24context (13) 13:21; 26:6,13;27:19;29:11; 33:10;36:6;37:10,14; 39:17;40:8,12;42:24continue (3) 16:12; 19:6;20:25continuing (1) 18:25conversation (3) 19:7; 25:23;26:12conversations (2) 17:12;18:5convicted (1) 13:8conviction (1) 13:4costs (1) 41:3council (10) 23:23; 24:17;25:9,11;27:8,10; 32:18;34:12;40:23; 49:24council's (1) 28:6counsel (3) 45:16;47:1;

48:13Counties (1) 4:24countries (1) 15:8country (1) 15:1County (5) 10:1,1,19; 14:1,3couple (6) 7:22;16:19; 17:19;34:17,19,23coupled (1) 14:14course (5) 27:24;35:7; 36:15;37:10;42:17Court (1) 13:23courts (1) 24:20cover (2) 44:18;46:17credit (1) 30:24criminal (1) 13:8critical (2) 19:1;32:12current (4) 16:10; 42:25;43:12,14currently (5) 37:18; 38:14,17;43:12;48:11cut (1) 11:23cutting-edge (1) 22:9

D

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E

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F

facets (1) 10:15fact (1) 11:23fair (4) 38:15;47:3; 48:14;49:8


(56) Clark's - fair



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17;37:2;39:20future (1) 21:12

G

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H

handing (1) 35:20happen (3) 11:22; 13:13;32:2happened (5) 15:22; 19:17;34:16;36:4; 38:10happening (3) 15:9; 19:20;33:1happy (6) 20:2;29:10; 32:4,4,6;38:9hard (1) 16:3HCR (10) 23:2;24:8; 26:6,20;28:14;34:9; 44:24;47:3;48:15;49:6head (1) 36:9heads (1) 13:1healthy (2) 12:6,15hear (3) 8:13;20:2;45:5heard (2) 25:11;42:2

Hearing (1) 50:18heart (1) 50:10help (1) 26:1helped (1) 18:8helps (1) 38:4high (2) 6:5;8:2highlight (2) 22:25;23:6highlights (2) 4:19;35:4himself (1) 7:15historically (1) 29:6history (1) 29:2Hoffman (1) 23:4hooked (3) 19:20,24; 20:10hoping (1) 25:23Horizon (2) 4:22;50:5hosted (1) 5:9hostility (3) 29:6,24,25hours (1) 36:3household (1) 25:2humor (1) 42:1hundreds (1) 14:25

I

idea (3) 5:15;42:11; 43:21II (1) 3:20III (1) 4:14impartial (4) 32:10,10, 13;43:15implement (2) 22:12,16important (10) 12:12, 15,19;18:24;20:10; 24:20;36:11,16;40:16; 41:6impose (1) 40:11impression (1) 37:4improve (1) 10:6improvement (1) 39:9incentive (1) 14:20inclination (1) 32:1include (2) 33:12;40:21included (3) 38:23; 47:4;48:15incomplete (3) 34:25; 35:22;37:17inconsistent (2) 37:12; 40:22increase (1) 11:21independent (1) 35:6Indian (1) 5:4indicator (1) 14:11individual (1) 9:11influence (1) 32:15informality (1) 38:5information (9) 7:9; 16:11;17:6;19:21,24; 20:11;37:5;39:10;41:7informed (4) 18:6,6; 44:12;49:9informs (1) 29:21initiative (1) 15:19

initiatives (2) 16:2; 24:21injunction (1) 23:3input (1) 17:6insofar (1) 27:9instance (1) 26:8instances (1) 34:24instead (1) 5:20integrity (2) 11:14; 49:11interact (1) 5:24interaction (3) 6:2; 10:14;24:22interest (4) 9:10,11,11; 14:14interested (3) 23:21,25; 31:17interesting (1) 5:15interpret (1) 24:21into (17) 17:2,5;19:21, 24;20:10;24:3,5,12; 27:17;29:10;33:14; 45:17,19,23;46:4,14; 48:2invited (2) 5:4;7:1inviting (1) 14:6involved (2) 12:20;42:3involving (1) 8:2irregularities (3) 8:3; 11:21;12:5issue (13) 7:19,20; 14:10,23;17:21;20:13; 22:20;32:8;35:8;43:17; 49:6,9;51:16issues (10) 7:23;10:7, 23;16:7;19:8;20:3; 25:6;26:9,23;27:5Item (13) 3:20;4:14; 21:11;22:24;23:10,13, 17,22;41:4,4;43:3; 51:17,21items (1) 23:20IV (1) 23:17

J

job (4) 14:22;21:5; 32:9;50:4Joe (2) 8:5;13:21Joel (2) 33:23;34:4joined (2) 8:11,18joining (1) 3:10Joseph (1) 12:25judgment (1) 16:8July (5) 5:5,7;17:16,25; 23:5June (1) 3:5

K

KAET (2) 6:23;7:16keep (7) 12:20;16:4,12; 18:6,6;21:6;22:20

keeping (1) 12:17Ken (3) 6:9;25:8,16kept (2) 5:21;43:15key (1) 6:3kicked (1) 13:6Kimble (18) 3:9,14,18, 19;23:8,11;33:2,6; 41:14,16;47:12,13,14, 23;48:4,5,6,7kind (18) 9:10,17; 11:23;12:8;20:3,6; 25:7;27:6,10;30:23; 31:3,13,19;37:3;39:7; 41:6,25;49:25kinds (1) 11:1knocked (1) 19:25knowledge (2) 26:9; 36:25known (1) 44:18knows (2) 24:16,19Knox (7) 41:19,20,21; 45:5;49:19,20,21KTNN (1) 4:25

L

language (17) 24:18, 20;26:3,4,17,17;27:15, 18,18;28:25;30:2; 32:10,20;35:2;38:13; 44:11,17large (1) 27:16LaRUE (1) 8:6last (6) 12:22;16:21; 19:15;22:24;35:8,11later (1) 7:24law (6) 13:12;26:13; 37:18;38:14,16,17lawless (1) 40:18lawsuit (3) 16:7;30:19, 20League (8) 34:9;41:23; 42:8;43:5,10,22;44:15; 49:21learned (1) 20:20least (4) 15:25;23:24; 35:14;41:2leave (1) 22:23leaves (1) 36:16leaving (1) 32:11leg (3) 25:9;34:12; 40:23legal (12) 24:23;29:21; 35:15;41:2;42:20; 45:15;47:2,3;48:12,13, 14;49:4legislative (10) 14:12, 14,16;23:22;24:17; 28:6;34:8;42:10;49:24; 50:1legislators (3) 30:13; 31:7;32:9legislature (12) 14:6;


(57) faith - legislature



15:17,23;26:20;28:24; 29:2,4,5,24;30:9; 32:17;40:7legitimate (1) 15:9length (1) 20:4less (1) 40:6level (1) 19:8levels (1) 30:12liked (1) 40:7likely (2) 26:19;41:2limit (2) 28:5,7limited (1) 36:22line (4) 47:17,17,24; 48:6lines (7) 21:6;27:20; 28:1,5,14,18,20litigation (2) 22:25;41:2little (6) 11:8;13:11,21; 28:21;39:9;42:1long (7) 7:7;11:16; 19:6;27:20,22;34:20; 42:11longtime (1) 34:6look (5) 24:20,21;29:1, 7;31:16looking (6) 8:23;10:9; 12:11;26:16;31:18; 39:18looks (4) 3:7;12:9; 14:20;47:16lose (1) 47:13lot (7) 7:24;17:22; 30:13;31:21;34:18; 35:20;42:1love (1) 42:23lower (1) 19:9loyal (1) 12:8Luigi (1) 50:3lumped (1) 32:5

M

mail (1) 25:4main (1) 39:22maintain (1) 49:11majority (1) 14:22makes (1) 37:1making (1) 7:10malign (1) 14:23mandate (2) 10:5,25many (4) 11:21;30:12; 41:23;42:9Maricopa (3) 10:19; 14:1,3matter (2) 23:4;24:15matters (1) 8:4May (18) 3:22;6:23,23; 8:23,25;10:9,10;11:2,4, 5;12:10;14:10,10; 20:16,23;24:22;40:20; 41:1maybe (4) 25:13;28:12; 39:7;41:25

mean (20) 7:6;9:10; 12:3;14:13,22,23; 19:23;22:8,15;28:19; 29:16;31:25;33:11,12; 37:25;38:1,14;39:16, 18;40:19meant (1) 37:23measure (2) 35:14;36:3measures (1) 24:23meat (1) 19:2Meet (3) 5:10,23,23meeting (18) 3:5;8:18; 16:21;27:14;29:2; 31:16;46:16,19;51:1,3, 13,15,22;52:1,5,14,16, 20meetings (1) 3:24members (3) 25:16; 27:11;41:21mention (3) 38:22; 39:24;50:1mentioned (3) 20:14; 37:7;40:1merged (1) 40:25met (2) 23:23;24:17MEYER (77) 3:3,15,17, 20;4:2,4,8,10,12;8:17; 11:15;17:1;19:11;22:6; 23:8,12;24:7,11,14; 28:10,13,17;30:4; 31:23;33:2,8,19,21; 34:1;37:19,24;38:5,12; 41:10,14,19,20;45:1,4, 9,18,22;46:1,3,7,11,13, 21;47:5,7,10,12,14,18; 48:5,9,22,25;49:2,16; 50:15,18,21;51:3,8,11, 15,20;52:3,7,9,11,17, 19,22,24;53:1might (5) 13:1,6,16; 25:6;44:21Mike (1) 40:23minds (1) 37:4minute (2) 3:23;48:3minutes (5) 3:22,24; 4:1,5,13misleadingly (4) 30:1; 34:25;35:22;37:17missed (1) 51:20mistaken (2) 12:25; 19:16moderator (1) 50:3moment (2) 12:2;47:20monetary (1) 14:21Money (14) 16:9,9; 17:7;18:22;19:19,23; 20:5,22;22:8;27:3; 36:21,23,24;44:8monies (1) 31:1month (2) 16:21;19:15more (16) 5:21;7:20; 10:13;12:18;13:21; 17:21;18:23;21:12;

25:1;28:21;29:23;32:3; 33:15;34:24;35:19; 39:9morning (4) 3:3,17,19; 41:20most (1) 19:1motion (22) 4:5,12; 23:3;45:16,20,22; 46:14,23;47:7,8;48:10, 11,12,16,19;49:2; 50:20,21;52:3,4,11,13move (10) 4:1;23:10; 45:9,18;46:25;49:16; 51:18,24,25;52:15moving (1) 34:24much (8) 10:18;19:17; 20:15;22:3;29:23; 31:13;42:5,19Municipal (1) 5:6myself (1) 25:18

N

name (1) 25:16Nate (1) 24:4Navajo (1) 4:24neatly (1) 18:23necessarily (1) 36:8necessary (2) 47:2; 48:14need (10) 10:15;21:8, 24,25;23:18;39:13; 45:15;50:23;51:5,9needed (1) 39:17needs (1) 34:20neither (1) 25:20Network (1) 34:5new (2) 5:8;22:10news (3) 8:1;15:22; 19:16newspaper (2) 6:7; 16:23newspapers (1) 15:3next (5) 14:17;17:15; 23:10;33:19,23nexus (3) 10:16;11:4,5none (3) 16:20;46:13; 50:19nonparticipating (1) 35:7nonpartisan (1) 41:22non-partisan (1) 49:8nonsensical (1) 38:17non-signal (1) 48:2noticed (1) 23:19November (1) 43:8Number (4) 3:20;4:14; 8:1,2

O

obligated (3) 6:13;7:15; 24:24

obligation (3) 10:3; 14:5;34:21obligations (2) 6:24; 36:20observing (1) 43:19obviously (7) 7:5;9:14; 14:22;29:20;31:12; 32:13;49:24o'clock (1) 3:6off (3) 13:1,6;47:16offer (2) 33:16;39:3offered (2) 25:10,20offers (1) 7:16office (16) 12:24;13:2, 3,3,6,25;14:2,3;17:13; 18:5,20;20:4,8;21:2; 44:16;50:11omission (1) 43:14one (29) 7:7,24;12:6, 22;13:2,22;15:8,16; 19:18;21:18;25:25; 26:5,8,23;27:14,20; 28:4,13,20;29:11,12; 30:19;37:15,19;47:20, 25;48:3;50:4,24ongoing (1) 16:8only (7) 12:23;20:16; 24:22;27:6,9;35:4; 36:22open (2) 21:7;29:24opens (1) 17:16OPERATOR (1) 48:4opinion (6) 31:5;32:14; 43:5,6,16;44:19opinions (1) 9:24opportunity (6) 5:22; 6:2;10:23;24:25;31:15; 44:12oppose (1) 34:9Opposed (3) 4:8;46:1,8opposing (2) 12:9;46:4opposition (7) 12:8; 44:23,23;46:11;48:23; 52:7,22optimistic (1) 22:20option (1) 20:22Oral (1) 23:2order (6) 3:4;5:19; 10:16;25:7;33:21; 45:14organized (1) 50:8others (1) 17:6otherwise (1) 19:9ourselves (1) 18:6out (18) 7:9;9:2;11:23; 13:14;15:1;18:3;25:1; 32:11;35:20;36:10,16; 38:23;39:7;41:3;43:2, 14,18;46:23outlets (1) 8:1outstanding (1) 50:4over (6) 9:24;13:25; 20:1;31:14;33:23;

35:10overlap (2) 9:18,21overriding (1) 26:3oversight (1) 9:24own (7) 6:24;11:3; 26:25,25;31:8,8;37:10

P

packet (1) 38:24paid (2) 5:12,21paid-for (1) 5:11pamphlet (10) 5:15; 23:24;24:9,18;26:4,17; 27:15;30:2;47:4;48:16paragraph (1) 36:5Pardon (1) 38:5parenthetical (2) 35:3; 36:13part (6) 6:3;22:9;27:6, 9;36:12;42:6participate (3) 5:20; 6:11;7:1participating (1) 6:10particular (4) 12:2; 21:17;23:22;50:11Particularly (2) 14:20; 27:4parties (3) 27:4;31:1; 44:9parts (1) 25:25pass (2) 14:21;23:23passed (2) 26:15;32:24passing (1) 26:14patience (1) 22:18PATON (41) 3:12;4:3; 6:16,18,20;7:21;9:7,9, 14,17,20;11:17,18; 14:18;15:7,16;16:5,15, 18,22;17:1;18:8,10,12, 16;19:10,14;20:12; 21:10;29:13,15,18; 30:24;31:23,25;33:18; 40:4;44:4;47:6;48:18; 52:18Paton's (1) 14:9pay (3) 9:3;18:10;31:1payment (1) 15:18PBS (1) 7:8pending (3) 13:22; 30:20;47:7pension (1) 43:3pensions (1) 43:4people (15) 5:12,22; 11:25;12:16,20;14:21, 25,25;17:24,25;23:24; 32:20,25;36:21;44:11people's (1) 37:4per (1) 6:2Perhaps (1) 16:2period (2) 13:9;17:23per-signature (1) 15:18person (4) 12:24;15:4;


(58) legitimate - person



20:16;26:16perspective (6) 10:12; 21:4,5;27:12;33:10; 45:6perspectives (1) 17:19petition (1) 8:3petitions (2) 8:2;14:21Phoenix (3) 5:23,23; 25:9phone (2) 3:8,10phrase (1) 37:1phrased (1) 42:19piece (5) 13:5;20:10; 22:10;36:17;37:6pieces (1) 35:8Pima (1) 10:21place (4) 21:19;27:2; 32:22;40:10plaintiffs (1) 30:19planned (1) 42:16play (3) 9:2;11:8;36:10played (1) 34:7please (4) 9:8;47:20; 48:20;49:14point (15) 11:2;14:9; 15:20;19:23;21:6; 26:22;28:3;29:1,22; 33:7;37:8;38:13,14; 40:17;43:8pointed (4) 38:23;43:2, 13,17points (4) 6:5;28:24; 34:17;38:8policies (1) 15:22political (5) 27:4;30:10; 31:1,4;44:9politicians (1) 15:4popcorn (1) 31:21position (2) 14:4;43:10possibility (1) 5:13possible (3) 3:21;4:15; 51:21possibly (1) 26:18potentially (1) 37:3power (1) 32:14preaching (1) 33:13preceded (1) 44:9precisely (2) 15:25; 16:1predict (1) 40:5preface (1) 24:16preliminary (1) 23:3present (2) 5:4;32:9presenting (2) 5:6;28:5press (1) 18:23pressure (1) 21:2pretty (6) 9:4,4;11:20; 15:2,12;42:5prevent (1) 49:5previously (1) 5:11prior (2) 24:3;43:18private (2) 36:22;49:25problem (4) 7:18;26:3;

39:23;48:9procedures (3) 23:1; 37:13;40:23proceedings (1) 53:4process (15) 9:1;10:6; 11:5,6,12,14;30:10,10; 38:11;40:15,18,19,22; 42:9,14productive (2) 18:4; 19:6program (3) 16:10; 35:12;39:22progress (1) 18:25prohibit (1) 15:18prohibited (1) 12:24project (1) 20:5promised (1) 21:17promote (1) 6:2Prop (1) 36:2proposals (2) 11:2,3propose (2) 23:17,18proposed (3) 44:17; 51:1,22proposition (2) 32:23; 43:9propositions (1) 26:5protect (1) 49:11provide (1) 6:24provided (5) 14:15; 37:18;38:14,17;39:17proving (1) 11:12provision (1) 13:12public (17) 5:17,19; 23:13,19,20;24:8;35:4; 36:14,17;37:2;39:19; 42:13;43:1;45:11; 46:19;49:17;50:16public-facing (1) 17:7publicity (5) 23:24;24:9, 18;47:4;48:16purchase (1) 44:8push (1) 25:22pushing (1) 35:24put (8) 21:11,19,25; 23:2;25:7;26:2;32:19; 35:14

Q

qualify (1) 10:15qualifying (3) 9:24; 11:4,5quick (3) 7:23;16:6; 38:13quit (1) 44:18quite (1) 50:2quorum (1) 3:7

R

raise (4) 5:3;7:22; 36:21,22Rather (1) 49:7

reach (4) 4:25;17:24; 25:3;48:1read (6) 16:22;20:1; 31:10;43:2,7,9reading (1) 43:8Reagan (1) 23:4real (6) 7:9,23;16:6; 19:21,24;20:11really (18) 7:14;14:4; 15:12;17:24;19:25; 23:6;25:18,21,22;26:6; 31:17;35:8,11,17;38:8; 44:12;50:5,10reason (1) 20:15reasons (3) 7:7;12:23; 27:20received (1) 13:25recommend (3) 24:4; 45:13,16recommendations (1) 11:12record (4) 8:17;20:20; 29:7;48:10Recorder (1) 10:19Recorders (4) 10:1,20, 22;12:11Recorder's (2) 14:1,3referendum (1) 15:19referendums (1) 24:21referred (1) 13:8regard (1) 12:22regarding (4) 16:1; 26:6;30:25;32:10regards (1) 27:4regulate (1) 35:6Regulatory (2) 27:8; 32:18rehab (1) 17:10rejoined (1) 48:4related (1) 22:25relation (1) 44:3relationship (3) 7:8; 19:7;20:8relayed (1) 17:13remainder (1) 52:1remains (2) 11:1;44:11reminding (1) 20:13reminds (1) 42:1repeat (1) 34:17report (2) 4:16;14:1reported (1) 43:21reporting (4) 16:11; 17:5,25;22:1reports (1) 18:23representative (29) 25:8,8,12,15,17;28:3, 8,15,18,22;29:4,14,17, 19;30:6;31:20;32:7; 33:4,8,17;34:14;35:23; 37:7;38:24;39:2,25; 41:22;42:16,24representing (2) 41:22; 42:8

Republic (1) 7:25Republican (1) 6:9Republicans (1) 29:5required (1) 37:9requirements (2) 37:9, 11resolve (1) 14:10respect (2) 16:3;23:17response (13) 4:9,11; 41:12;45:3;46:12; 48:24;49:1,15;50:17; 52:8,10,23,25responsive (1) 19:4restrictive (2) 32:3;40:6resumes (1) 46:20retirement (1) 26:8review (5) 9:24;14:1,6; 27:8;32:18reviews (1) 14:5reworded (1) 44:21right (31) 3:3;4:4;5:5; 8:5;9:13,16,19;12:13; 15:6;17:19;18:9;20:23; 24:8,14;26:10,13; 28:17;30:20;34:23; 35:9,17;36:22;40:4,9, 10,18;45:8;50:18;51:4; 52:19;53:1Rivko (5) 25:14;33:23; 34:3;41:21;49:21road (3) 11:4;22:12,17robust (2) 12:7,15role (2) 27:7;30:22roles (2) 34:7;50:12Rs (1) 30:21rule (1) 34:11rule-making (5) 26:25; 32:23;37:9,11;40:15rules (20) 6:8,12,25; 7:1,15,20;26:25,25; 27:2;30:25;32:1,4,22; 40:1,2,6,9,11;41:3;44:7run (2) 13:3,6running (6) 12:7,21,24; 13:2;16:6;22:14rusty (1) 13:11

S

safe (1) 14:13safely (1) 33:11saga (1) 34:7same (3) 28:10;40:2; 44:11sat (1) 42:9satisfied (1) 16:24save (1) 20:5saw (1) 43:8saying (7) 15:16;30:11; 31:19;34:13;35:25; 42:1,3scholar (1) 29:21scholarship (1) 29:9

scholarships (1) 29:16se (1) 6:2search (1) 17:7season (1) 19:2second (13) 4:2,3;17:3; 27:1,7;45:20,21;47:5,6, 25;52:3,17,18seconded (1) 48:17Secretary (11) 6:9; 8:23;9:18;10:1,19; 13:24;17:12;18:5,19; 24:19;44:16Secretary's (1) 21:2section (1) 46:16seeing (1) 11:20seem (2) 18:14;19:4seemed (2) 26:24;27:1Senate (1) 26:1sense (1) 31:4sentence (1) 35:25sentences (2) 34:19; 43:11separate (3) 21:11; 39:7;46:17serious (1) 25:23seriously (1) 25:21services (2) 31:2;44:8session (14) 6:13;24:3, 5,13;34:8;45:17,19,23; 46:5,15,17,19,22,24set (3) 12:4;32:1,23several (2) 34:7;35:11shall (1) 50:9shear (1) 18:13Shoot (1) 11:18short (2) 17:23;35:3show (4) 36:20,24; 37:2;42:7shown (2) 29:6,8shows (1) 28:24sign (1) 15:2signal (1) 35:18signature (3) 8:3;10:14; 13:4signatures (2) 9:25; 12:11signing (1) 14:25similar (3) 16:2;37:11; 42:17Simons (2) 7:7;50:8single (1) 34:11sit (1) 7:15situation (3) 32:6; 43:12,14six (1) 27:10slips (1) 9:25soda (1) 31:21someone (1) 45:16somewhat (1) 18:20somewhere (1) 15:17sorrily (1) 31:10Sorry (5) 8:14,20; 16:16;39:20;51:11


(59) perspective - Sorry



sort (14) 6:4;15:15; 17:20;34:8,15;35:16; 36:6;37:13;38:10; 39:17,21;40:5,17,24sound (2) 18:13;37:1sources (1) 36:21space (1) 31:9speak (3) 11:24;30:16; 43:19speaking (2) 18:21; 44:19spearheading (1) 4:22specifically (1) 10:9speculate (1) 40:24Spencer's (1) 14:15spend (1) 27:3spent (1) 27:16spoke (2) 43:2;49:23spoken (1) 41:23sponsor (1) 5:19staff (6) 16:24;21:4; 26:1;38:23;41:21;50:7standards (1) 6:24start (2) 34:13;41:25started (2) 28:4;43:11starting (1) 4:23State (10) 6:9;9:18; 10:1,19;24:19;25:2,16; 41:3;49:4,12statement (4) 14:18; 20:19;44:15,22states (1) 22:10State's (8) 8:24;13:24; 17:12;18:5,20;44:16; 47:4;48:15status (1) 42:25statutory (3) 10:2,2; 14:4step (1) 20:7Stephanie (1) 4:21steps (1) 15:25Steve (1) 8:11stick (1) 36:3still (3) 8:4;23:18;40:8story (3) 14:15;17:13; 19:16strongly (2) 12:18; 30:22structure (1) 24:6stuff (1) 9:4subject (1) 34:11submitted (2) 44:15,22subset (1) 29:3substance (1) 23:1successful (2) 14:7; 32:22suggest (1) 23:20suggestions (1) 10:5suggests (1) 37:13summaries (1) 38:15summary (10) 16:8; 23:23;28:6;30:18;31:7, 10;34:15;38:15;47:3;

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(60) sort - 5th

ITEM III

CITIZENS CLEAN ELECTIONS COMMISSION EXECUTIVE DIRECTOR REPORT

July 19, 2018 Announcements:

The public can view Commission meetings live via the internet at www.livestream.com/cleanelections. A link is available on our website.

Voter Education:

Debates are underway and voters can view the debate schedule, or recorded debates, on our website.

o Staff is gearing up for the debates in Pima County, which will be held in partnership with Sahuarita, Sahuaro and Empire schools.

The digital version of the Voter Education Guide is available on our website. The print version will begin to arrive in households on July 25th.

Gina presented at the American Indian Right to Vote conference on July 12th.

Alec will present at the Arizona Municipal Clerks’ Association Election Conference on July 25th.

A “Meet the Candidates” event will be held by the Arizona Capitol Times on August 1st at The Palomar in downtown Phoenix. This event will be free to the public, through a sponsorship by CCEC.

2018 Candidate Information:

Participating Legislative Candidates: 63; Received Funding: 49

Participating Statewide Candidates: 10; Received Funding: 7

Clean Elections Training Workshops:

o Online training is still available for candidates. https://www.azcleanelections.gov/en/run-for-office/candidate-training

Enforcement – 2018:

Complaints Pending: 1

MUR 18-04: Kathy Hoffman

Enforcement – 2014:

Complaints Pending: 3

MUR 14-006, -015 (consolidated/conciliated): Horne - pending correction of campaign finance reports consistent with the conciliation agreement.

MUR 14-007: Legacy Foundation Action Fund (LFAF) – LFAF and the Commission’s lawsuits were consolidated. The Commission seeks a court order requiring LFAF to pay its fine and file reports, LFAF raises identical claims to those already foreclosed by its failure to appeal. Initial motions are due at the end of the month.

http://www.livestream.com/cleanelections

https://www.azcleanelections.gov/en/run-for-office/candidate-training

ITEM III

Miscellaneous

Proposed Consent Decree between LULAC et al and Secretary Reagan o The Secretary, Recorder Fontes, and a set of plaintiffs lead by LULAC have

proposed a consent decree addressing the treatment of voter registration forms. o According to Capitol Media Services’ Howard Fischer, under the proposal:

“Secretary of State Michele Reagan has agreed to: Not demand proof of citizenship to register for federal, state and local

elections if people already have provided such proof to the Motor Vehicle Division to obtain a driver’s license;

Make it easier for people to move from county to county without having to provide new citizenship proof at their new address;

Accept voter registration forms from those who do not have proof of citizenship to let them at least cast ballots for president and members of Congress.

http://tucson.com/news/local/arizona-agrees-to-ease-some-restrictions-for-people-registering-to/article_ad64689d-f043-51bf-90b7-11aa8eed3d8f.html#tracking-source=home-the-latest

o The approved consent decree is attached as Exhibit A.

A new case has been filed in Federal Court, called Knox v. Brnovich. That case challenges the state’s ballot collection law as preempted by federal postal law. The Complaint and Motion for Preliminary Injunction are attached at Exhibit B. and C.

There is an outstanding legislative signature appeal that deals with an independent candidate – i.e. a candidate who would if he is successful only appear on the general ballot—that is remains pending at the Arizona Supreme Court.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

League of United Latin American Citizens of Arizona; Arizona Students’ Association,

Plaintiffs,

v.

Michele Reagan, in her official capacity as Secretary of State of Arizona; Adrian Fontes, in his official capacity as Maricopa County Recorder,

Defendants.

No. CV17-4102-PHX DGC

CONSENT DECREE

Before the Court is the Joint Motion Requesting Entry of Consent Decree, filed by

Plaintiff League of United Latin American Citizens of Arizona (“LULAC-Arizona”),

Plaintiff Arizona Students’ Association (“ASA”), Defendant Michele Reagan, in her

official capacity as Secretary of State of Arizona (the “Secretary”), and Defendant

Adrian Fontes, in his official capacity as Maricopa County Recorder (“Recorder

Fontes”). Doc. 36. All Plaintiffs and Defendants shall hereafter be referred to as the

“Parties.”

On November 7, 2017, LULAC-Arizona and ASA initiated this action against the

Secretary and Recorder Fontes. The complaint alleged that Arizona’s dual voter

registration policies violate the First and Fourteenth Amendments to the United States

Constitution. Specifically, LULAC-Arizona and ASA alleged that Arizona treats voter

Case 2:17-cv-04102-DGC Document 37 Filed 06/18/18 Page 1 of 16

EXHIBIT A

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registration applicants differently depending on whether they use Arizona’s state

registration form (the “State Form”) or the national registration form (the “Federal

Form”). At the time the lawsuit was filed, fourteen of Arizona’s County Recorders

rejected State Form applications submitted without valid documentary proof of

citizenship (“DPOC”). Federal law required the County Recorders to accept Federal

Form applications, even when they are submitted without DPOC. The Motor Vehicles

Department (“MVD”) Proxy Table was then electronically checked through an

automated process to determine whether the Federal Form applicants had a valid driver’s

license, which indicates that DPOC is supposed to be on file with the MVD. Those with

DPOC on file are eligible to vote in both state and federal elections (“Full Ballot Voter”).

Those who did not have DPOC on file with the MVD were only able to vote in federal

elections (“Fed Only Voter”).

As a result, whether one who does not present valid DPOC is registered to vote in

federal elections is entirely dependent on which form the applicant uses to register.

Those using the Federal Form but not providing DPOC, are registered to vote in federal

elections; and, depending on the results of the Secretary’s automated review of the MVD

database, may be registered to vote in state elections as well. But those using the State

Form, and not providing valid DPOC, are not registered to vote in any elections because

the application is rejected in its entirety. LULAC-Arizona and ASA alleged that this dual

voter registration process violated the First and Fourteenth Amendments.

The Secretary denies that Arizona’s voter registration policies violate the First

and Fourteenth Amendments or are otherwise illegal under state or federal law. The

Secretary asserts that Federal and State Form applicants are not similarly situated for

equal protection purposes. The Secretary asserts that Arizona is constitutionally

permitted to require those applying to register to vote using the State Form to personally

provide DPOC at the time that they submit their State Form. The Secretary further

asserts that there is no constitutional or statutory requirement that Arizona election

officials register applicants for federal elections when they have chosen to use the State

Form to register to vote rather than the Federal Form.


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Nevertheless, the Secretary and Recorder Fontes desire to make it as easy

possible for Arizona’s citizens to register to vote, while remaining consistent with

Arizona and federal law and also providing necessary safeguards to deter those who

would commit voter registration fraud. Having reviewed the applicable law, the

Secretary and Recorder Fontes have concluded that current technology allows the

Secretary, Recorder Fontes, and the other Arizona County Recorders to treat State Form

applications exactly as they treat Federal Form applications, and that because of current

technology such treatment is consistent with the provisions of Arizona law, including the

requirements of Proposition 200, codified at A.R.S. §§ 16-166(F) and 16-152(A)(23).

The Secretary and Recorder Fontes agree that treating Federal Form and State Form

applications the same will make it easier for Arizona’s citizens to register to vote, while

also providing important safeguards to prevent unlawful voter registration. Accordingly,

on February 8, 2018, the Secretary and Recorder Fontes through their counsel notified

counsel for LULAC-Arizona and ASA of their desire to enter into an agreement that will

resolve the underlying litigation and also benefit Arizona’s citizens.

The Parties have negotiated in good faith and agree to the entry of this Consent

Decree as an appropriate resolution. Accordingly, the Parties stipulate and agree as

follows:

PRELIMINARY RECITALS

1. LULAC-Arizona is the Arizona-based branch of the oldest and largest

national Latino civil rights organization. LULAC is a non-profit membership

organization with a presence in most of the fifty states. Founded in 1929, it works to

advance the economic condition, educational attainment, political influence, health and

civil rights, including voting rights, of the Hispanic population of the United States.

2. ASA is a student-led, non-partisan membership organization created to

represent the collective interest of the over 140,000 university students and over 400,000

community college students in Arizona. ASA advocates at the local, state, and national

levels for the interests of students. As a part of its mission, ASA encourages students

throughout Arizona to register to vote through voter registration activity.


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3. Michele Reagan is the Arizona Secretary of State. The Secretary of State is

responsible for supervising voter registration throughout the state and providing binding

regulations and guidelines for voter registration. A.R.S. § 16-142. Secretary Reagan was

sued in her official capacity only.

4. Adrian Fontes is the Maricopa County Recorder, an elected countywide

officer. Recorder Fontes is responsible for conducting voter registration in Maricopa

County. A.R.S. §§ 16-131, -134. Recorder Fontes was sued in his official capacity only.

5. This action was brought by LULAC-Arizona and ASA to vindicate First

and Fourteenth Amendment rights relating to voter registration.

6. Arizona’s practice of treating Federal Form and State Form applications

differently, described above, arose from past Arizona election officials’ understanding of

the effect of Proposition 200, which was passed by Arizona’s voters in 2004 and codified

at A.R.S. §§ 16-166(F), 16-152(A)(23), in conjunction with the technology available at

the time. Since the passage of Prop. 200 in 2004, a new statewide voter registration

database has been implemented and provides additional tools to election officials.

7. Arizona’s voter registration technology, including its voter registration

database, now allows DPOC already on file with the MVD database to be associated

near-instantaneously with voter registration applications submitted without DPOC,

irrespective of whether the applications are State Forms or Federal Forms.

8. The Secretary denies that prior practices, challenged in this lawsuit, were

unlawful. By agreeing to this Consent Decree, the Secretary and Recorder Fontes seek

to serve Arizona’s citizens by (1) continuing to comply with Arizona law while (2)

making the voter registration process using the State Form easier.

DEFINITIONS

1. “ADOT” means the Arizona Department of Transportation, which is

established pursuant to A.R.S. § 28-331. It has the responsibility to “provide for an

integrated and balanced state transportation system.” The Arizona Motor Vehicles

Division is a division of ADOT. A.R.S. § 28-332(C).

2. “AHCCCS” means the Arizona Health Care Cost Containment System,


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which is established pursuant to A.R.S. § 36-2902. AHCCCS is Arizona’s Medicaid

agency that offers health care programs to serve Arizona residents.

3. “Applicant” means an individual who has submitted an application to

register to vote in the State of Arizona.

4. “AVID Database” means the voter registration database, currently being

developed for the state of Arizona and intended to replace the current Database. The

AVID Database is projected to be operational sometime in 2019 or early 2020, but shall

be operational no later than July 1, 2020 except as provided in subparagraph (a), below.

(a) The date of July 1, 2020, contemplated for the operational function of the

AVID Database, is contingent on the vendor with whom the Secretary has contracted to

develop AVID fulfilling its obligations to have AVID operational in 2019 or early 2020

at the latest. Should the vendor be unable to meet this contingency, or should the

implementation of the AVID Database otherwise be delayed, the Secretary shall notify

the Court and the Parties to this Consent Decree, in writing, and shall indicate in writing

the date by which the vendor believes that AVID will be operational. Plaintiffs retain the

right to seek a remedy from the Court to enforce this agreement if the implementation of

the AVID database is unduly delayed.

(b) The provisions in this consent decree that apply to the AVID database will

also apply to any future voter registration system adopted by the Secretary of State’s

office.

5. “County Recorder” means the County Recorder of each of Arizona’s

fifteen counties, and includes all county election officials working in or in conjunction

with their offices.

6. “Database” means the existing electronic storage system developed and

administered by the Secretary that contains the official voter registration record for every

voter in the state. See A.R.S. § 16-168(J).

7. “DES” means the Arizona Department of Economic Security, which is

established pursuant to A.R.S. § 41-1952.

8. “Designated voter registration agencies” are agencies that are required to


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provide voter registration services pursuant to the National Voter Registration Act.

9. “DHS” means the Arizona Department of Health Services, which is

established pursuant to A.R.S. § 36-102.

10. “DPOC” means documentary proof of citizenship, and is limited to the

forms of satisfactory evidence of citizenship listed in A.R.S. § 16-166(F).

11. “F-type License” means the designation that the MVD uses in its database

to distinguish Arizona driver’s license holders who, at the time that their driver’s licenses

were issued, were presumed by MVD to not be United States citizens.

12. “Fed Only Voter” means an individual who is registered to vote solely in

Arizona elections for federal office.

13. “Federal Form” means the National Mail Voter Registration Form,

provided by the U.S. Elections Assistance Commission and used to register to vote in

elections for federal office, as well as the Federal Write-in Absentee Ballot and Federal

Post Card Application as those terms are used in 52 U.S.C. §§ 20302 and 20303.

14. “Federal Office” means the office of President or Vice President; or of

Senator or Representative in, or Delegate or Resident Commissioner to, the United States

Congress. 52 U.S.C. § 20502(2).

15. “Full Ballot Voter” means an individual who is registered to vote in

Arizona elections for federal, state, and local office.

16. “Guidance” means formal guidance on voter registration procedures that

the Secretary of State will provide to the County Recorders pursuant to her role as chief

election official responsible for prescribing uniform procedures for voting. See A.R.S. §

16-142. The Secretary will provide Plaintiffs’ counsel with copies of her Guidance

before it is sent to the County Recorders.

17. “MVD” means the Arizona Motor Vehicles Division.

18. “MVD database” means the electronic storage system developed and

administered by the Arizona Motor Vehicle Department.

19. “MVD Proxy Table” means the MVD data provided to the Secretary of

State that includes the nightly updates of MVD transactions that occurred in the past


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twenty-four hours that MVD sends to the Secretary in batch form.

20. “Procedures Manual” means the State of Arizona Elections Procedures

Manual, which provides the rules related to voting and the conduct of elections. A.R.S. §

16-452. The Secretary is required to develop the Procedures Manual in conjunction with

the fifteen County Recorders. Id. The Procedures Manual has the force of law. A.R.S. §

16-452(C). The Procedures Manual, 2018 Edition, has been drafted by the Secretary and

submitted to the Governor and Attorney General as required by law for their review. Id.

21. “Protected Voter Registration” means the program to ensure anonymity to

survivors of stalking, domestic violence, and sexual assault through the Address

Confidentiality Program provided by A.R.S. § 41-161, et seq., and certain other

individuals pursuant to A.R.S. § 16-153.

22. “Secretary” means the Arizona Secretary of State and her office, as well as

successors in office.

23. “State Form” means the options for voter registration created and provided

by the State of Arizona and its agencies, including but not limited to the online

registration available through Service Arizona, the paper application available on the

Secretary of State’s website, the paper application available at all County Recorder

offices, and the Protected Voter Registration process.

24. “State Office” means any elected statewide, county-wide, or municipal

public office, other than a Federal Office, for which a voter registered in the State of

Arizona is eligible to vote.

ORDER

Accordingly, the Parties having freely given their consent, and the terms of the

Consent Decree being fair, reasonable, and consistent with the requirements of state and

federal law,

IT IS ORDERED as follows:

1. The Joint Motion for Approval of Consent Judgment (Doc. 36) is granted.

2. The Procedures Manual. The Parties are aware that the draft Procedures

Manual, 2018 Edition has been submitted by the Secretary to Arizona’s Governor


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and Attorney General for their review as required by statute. See A.R.S. § 16-

452(B). Within thirty days after entry of this Consent Decree, the Secretary shall

revise the Procedures Manual to incorporate the terms of this Consent Decree

(“Procedures Manual Revisions”) and send the Procedures Manual Revisions,

together with the Secretary’s recommendation of approval, to the Governor and

Attorney General for their review, see A.R.S. § 16-452(B), and also to Plaintiffs’

counsel. If Plaintiffs determine that the Procedures Manual Revisions do not

comply with this Consent Decree, Plaintiffs may seek review by this Court

through the Court’s procedures for motions. If the Governor and Attorney General

do not approve the Procedures Manual Revisions or request modifications, the

Secretary will send the Attorney General and/or Governor’s rejections or

proposed modifications to Plaintiffs’ counsel. If those rejections or proposed

modifications are in any respect inconsistent with this Consent Decree, Plaintiffs

may use any available legal remedies to secure compliance with this Consent

Decree.

2. State Form Applications Submitted Without DPOC. Within thirty days

after entry of this Consent Decree, the Secretary shall, in writing:

a. provide guidance to the County Recorders to accept State Form

applications submitted without DPOC;

b. provide guidance to the County Recorders to enter all such

applications in the Database (or, in the case of Maricopa County and

Pima County, to enter all such applications in their county voter

registration databases and transmit such entries to the Database);

c. provide guidance to the County Recorders to immediately register

the applicants for federal elections, provided the applicant is

otherwise qualified and the voter registration form is sufficiently

complete; and

d. check all State Form applications submitted without DPOC against

the MVD database Proxy Table, via the automated processes in the


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Database, to determine whether the MVD has DPOC on file for the

applicants. If DPOC is located, the Secretary shall promptly notify

the applicable County Recorder via the automated processes in the

Database that the State Form applicant has DPOC on file with the

MVD and so must be made a Full Ballot Voter via the automated

process in the Database.

i. if the Secretary’s check performed by the automated

processes in the Database against the MVD database Proxy

Table indicates that a State Form applicant holds an F-Type

License, the Secretary shall promptly notify the applicable

County Recorder of that fact via the automated processes of

the Database. The automated processes of the Database will

also flag this issue so that the County Recorder will know to

change that applicant’s voter registration status to “not

eligible.” The Secretary shall provide guidance to the County

Recorders that the County Recorders shall notify the

applicant by U.S. Mail within ten business days after

receiving notice via the automated process in the database,

according to information on file with the MVD database, that

the applicant holds an F-Type License indicating non-

citizenship and so will not be registered to vote. The

notification from the County Recorder shall also inform the

applicant that the applicant can provide valid DPOC to the

County Recorder in order to become a Full Ballot Voter. The

notification will be accompanied by the form described in

Paragraph 3 (the “DPOC Submission Form”). The applicant

may submit DPOC to the County Recorder through the

process described in Paragraph 3 to become a Full Ballot

Voter.


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ii. if the Secretary’s check via the automated features of the

Database determines that a State Form applicant does not

hold an F-Type License, but also does not have DPOC on file

with the MVD, the Secretary shall promptly notify the

applicable County Recorder of that result via the automated

processes of the Database. The County Recorder shall notify

these applicants by U.S. Mail within ten business days after

receiving notice from the Secretary that (1) the County

Recorder does not have the requisite DPOC to process their

application; (2) they must submit DPOC if they wish to be a

Full Ballot Voter; and, (3) until such time as they submit

DPOC, they will be a Fed Only Voter and so will only be

eligible to vote in Federal elections. The notification shall be

accompanied by the form described in Paragraph 3 (the

“DPOC Submission Form”). The applicant may submit

DPOC to the County Recorder through the process described

in Paragraph 3 to become a Full Ballot Voter. Until and

unless the applicant submits valid DPOC, the County

Recorders shall cause those voter registration applicants to be

made Fed Only Voters.

3. Provision of DPOC After the Submission of a State Form Application.

Applicants who do not submit DPOC with their State Form application and do not have

DPOC on file with MVD, and are notified by the applicable County Recorder that they

will be Fed Only Voters unless and until they submit DPOC, may submit valid DPOC to

become a Full Ballot Voter. To do so, they shall submit their DPOC to the County

Recorder with a form provided to them by that official. This form (the “DPOC

Submission Form”), which shall be developed by the Secretary and the County

Recorders within thirty days after entry of this Consent Decree, shall contain sufficient

information to allow the County Recorder to link the voter registration applicant’s DPOC


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with his or her State Form application already on file in the Database.

A. Applicants who submit their State Form application at least twenty-nine

days before an election as required by statute, A.R.S. §§ 16-120(A), -134(C), and whose

valid DPOC with the DPOC Submission Form is received by their County Recorder by 5

p.m. local time on the Thursday before the election, will be made Full Ballot Voters by

the County Recorder and may vote in the upcoming election as a Full Ballot Voter. The

registrations of such applicants shall be deemed to have occurred on the date that they

originally submitted their State Form application. If the County Recorder has already

transmitted a Fed Only early ballot to that voter, the voter will have the option to vote

either that Fed Only early ballot or else vote a provisional Full Ballot at the polling place

or vote center and comply with the rules regarding provisional ballots.

B. Applicants who submit their State Form application at least twenty-nine

days before an election, and whose valid DPOC is received by 5 p.m. local time on the

Thursday before the election, but who do not submit the DPOC Submission Form, may

be made Full Ballot Voters by the County Recorder if the County Recorder has sufficient

information to link the voter registration applicant’s DPOC with the applicant’s State

Form application already on file in the Database. If the County Recorder makes such an

applicant a Full Ballot Voter, and if the County Recorder has already transmitted a Fed

Only early ballot to that voter, the voter will have the option to vote either that Fed Only

early ballot or else vote a provisional Full Ballot at the polling place or vote center and

comply with the rules regarding provisional ballots.

C. Applicants who do not submit their State Form application at least twenty-

nine days before an election as provided by statute, or whose valid DPOC is received by

their County Recorder after 5 p.m. local time on the Thursday before the election, will

not be made Full Ballot Voters for the upcoming election. The County Recorder shall

make such applicants Full Ballot Voters within five business days after processing

provisional ballots, and they shall be Full Ballot Voters for subsequent elections.

D. For all applicants who submit State Form applications without valid

DPOC, but subsequently submit valid DPOC and do not submit the DPOC Submission


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Form, the County Recorder may make the applicant a Full Ballot Voter if the County

Recorder has sufficient information to link the voter registration applicant’s DPOC with

the applicant’s State Form application already on file in the Database. If the County

Recorder lacks sufficient information to link the DPOC to the voter’s application in

order to make the applicant a Full Ballot Voter, the County Recorder may follow up with

the applicant to seek the missing information if the County Recorder has sufficient

information to do so. Applicants who subsequently provide the missing information

necessary to link their DPOC to their applications shall be made Full Ballot Voters by

the County Recorder within ten business days.

4. State Form Applications Submitted On or After January 1, 2017. This

Consent Decree will govern all voter registration applications submitted after entry of

this Consent Decree, including applications submitted within thirty days after entry of

this Consent Decree. However, within thirty days after entry of this Consent Decree, the

Secretary shall also provide written guidance to all County Recorders except the

Maricopa County Recorder that, pursuant to the Consent Decree, they may, at their

discretion, implement the new procedures outlined in Paragraphs 2–3 of this Consent

Decree for State Form applications dating back to January 1, 2017, provided that they

have the capability to ensure that such applicants have not moved, become deceased, or

otherwise subsequently already registered to vote. Any applicants whose applications

were filed before entry of this Consent Decree who are newly registered as Fed Only or

Full Ballot Voters as a result of that process will be given the proper notice of their new

registration status by U.S. Mail.

Within ninety days of entry of this Consent Decree, the Maricopa County

Recorder shall implement the new procedures outlined in Paragraphs 2–3 of this Consent

Decree for State Form applications dating back to January 1, 2017. This process shall

include: (1) entering all State Forms submitted without DPOC into the database and

immediately registering those applicants for federal elections, (2) checking the

applicants’ status against the MVD database, and (3) sending the applicants notification

of their new registration status.


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5. Federal Form Applications. Within thirty days after entry of this Consent

Decree, the Secretary shall provide written guidance to the County Recorders to

promptly register all applicants who submit their Federal Form application with valid

DPOC as Full Ballot Voters and promptly register all applicants who submit their

Federal Form application without valid DPOC as Fed Only Voters. From the date of the

entry of the Consent Decree, the Secretary shall also cause all new Federal Form

applications submitted without DPOC to be checked against the MVD Proxy Table

promptly upon entry into the Database, via the automated processes in the Database, to

determine whether the MVD has DPOC on file for such Federal Form applicants, and

take the following steps:

a. If this check determines that the MVD Proxy Table has DPOC on file for

any Federal Form applicant, the Secretary shall promptly notify the applicable County

Recorder via the automated process in the Database that the applicant has DPOC on file

with MVD and so must be made a Full Ballot Voter via the automated process in the

Database.

b. If this check determines that the MVD Proxy Table has information

indicating that any Federal Form applicant holds an F-Type License, the Secretary shall

promptly notify the applicable County Recorder of that fact via the automated processes

of the Database and flag this record for the County Recorder to change that applicant’s

voter registration status to “not eligible.” The County Recorder shall notify the applicant

by U.S. Mail within ten business days after receiving notice from the Secretary that,

according to information on file with the MVD database, the applicant holds an F-Type

License indicating non-citizenship and so will not be registered to vote. The County

Recorder’s notice shall also inform the applicant that, if this information is not correct,

the applicant may provide valid DPOC in order to become a Full Ballot Voter. The

notification will be accompanied by the DPOC Submission Form described in Paragraph

3. The applicant may submit valid DPOC to the County Recorder through the process

described in Paragraph 3 to become a Full Ballot Voter.

c. If this check determines for any applicant that the MVD database does not


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have DPOC on file and also that the applicant does not hold an F-Type License, the

Secretary shall promptly notify the applicable County Recorder of that result via the

automated processes of the Database. The County Recorder shall notify these applicants

by U.S. Mail within ten business days after receiving notice from the Secretary that (1)

the County Recorder does not have the requisite DPOC to process their application; (2)

they must submit valid DPOC if they wish to be a Full Ballot Voter; and, (3) until such

time as they submit valid DPOC, they will be a Fed Only Voter and so will only be

eligible to vote in Federal elections. The notification will be accompanied by the DPOC

Submission Form described in Paragraph 3. The applicant may submit valid DPOC to

the County Recorder through the process described in Paragraph 3 to become a Full

Ballot Voter. Until and unless the applicant submits valid DPOC, the County Recorders

shall cause those voter registration applicants to be made Fed Only Voters.

d. Federal Form applicants who subsequently submit valid DPOC shall be

made Full Ballot Voters according to and in conformity with the process described in

Paragraph 3.

6. Registered Voters Who Move From One Arizona County to Another.

The AVID Database or another voter registration database similar to the AVID Database

shall be operational as described, and according to the terms set forth, in the Definitions

section of this consent decree. When the AVID Database is operational, the Secretary

and County Recorders will be able to verify DPOC and append that information to

applicants’ voting records when those applicants change voter registration from one

Arizona county to another. Consequently, once the AVID Database is operational and in

use by the Secretary and the County Recorders, registered Full Ballot Voters will not be

required to independently submit DPOC to their new County Recorder, so long as their

DPOC is in the AVID Database.

7. Application to Other Forms of Registration. The procedures outlined

above for processing voter registration applications submitted without valid DPOC will

apply equally to all forms of voter registration, including voter registration through

designated voter registration agencies, the Federal Post Card Application (FPCA), the


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Federal Write-In Absentee Ballot, and the In-Person EZ Voter Registration system.

8. Education of the Public. The Secretary shall continue to make reasonable

efforts to better educate the citizens of Arizona concerning their opportunities to register

to vote, including opportunities presented by the Federal Form. The Secretary will

provide Plaintiffs’ counsel with a copy of the planned notice that she intends to place on

her website. Within thirty days after the entry of this Consent Decree, the Secretary shall:

a. Update her website to explain that:

i. the State Form requires valid DPOC for state elections only;

ii. submission of a sufficiently complete State Form with valid DPOC will

make the applicant a Full Ballot Voter;

iii. submission of a sufficiently complete State Form without DPOC will

make the applicant a Fed Only Voter;

iv. the Federal Form does not require DPOC;

v. submission of the Federal Form without valid DPOC will make the

applicant a Fed Only Voter; and

vi. submission of the Federal Form with valid DPOC will make the

applicant a Full Ballot Voter.

b. Provide guidance to the County Recorders that they should provide the

information required in this Section 8 on their websites;

c. Notify ADOT, DHS, AHCCCS, and DES of the changes in voter

registration procedures outlined in this Consent Decree;

d. Within four months after the entry of this Consent Decree, the Secretary

shall create a new State Form that explains that citizens who do not submit DPOC with

their registration forms will be registered only for federal elections until the appropriate

proof of citizenship is provided or acquired. The Secretary will provide notice to

Plaintiffs’ counsel regarding the form of the explanation described in the previous

sentence. The Secretary will create the new State Form within three months if the

Secretary determines that it is possible to do so. The Secretary shall provide guidance to

the County Recorders and all State Offices that disseminate voter registration forms,


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including designated voter registration agencies, that they should utilize the new State

Form as soon as practicable. See A.R.S. § 16-352(C). Within thirty days after entry of

the Consent Decree, the Secretary will provide written notice to the County Recorders

that there will be changes made to the State Form within four months after the date the

Consent Decree was entered.

10. Continuing Jurisdiction. The Court shall retain jurisdiction over this

action until December 31, 2020 to enter such further relief as may be necessary for the

effectuation of the terms of this Consent Decree.

11. Attorneys’ Fees and Costs. The Parties will continue to confer regarding

what amount, if any, the State Defendants should pay to Plaintiffs for their attorneys’

fees and costs. If the Parties are unable to agree privately upon payment of fees and

costs, Plaintiffs will file a motion for attorneys’ fees and costs pursuant to 42 U.S.C. §

1988 within forty-five days after entry of this consent decree.

The Clerk of Court is directed to terminate this action.

Dated this 18th day of June, 2018.


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Spencer G. Scharff (028946) SCHARFF PLC 502 West Roosevelt Street Phoenix, Arizona 85003 T: (602) 739-4417 [email protected]

Roopali H. Desai (024295) COPPERSMITH BROCKELMAN PLC 2800 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 T: (602) 381-5490 F: (602) 224-6020 [email protected]

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Rivko Knox,

Plaintiff,

v.

Mark Brnovich, in his official capacity as Arizona Attorney General,

Defendant.

No.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiff Rivko Knox brings this action against Mark Brnovich, in his official

capacity as Arizona Attorney General (“Defendant”), and alleges as follows:

NATURE OF THE CASE

1. This action challenges the constitutionality of A.R.S. § 16-1005(H), which

was amended by House Bill (“HB”) 2023 in 2016 (hereinafter referred to as “HB

2023”). HB 2023 criminalizes lawful conduct—the “collection” and delivery of early

ballots. Specifically, HB 2023 makes it a class 6 felony for any person to “knowingly

Case 2:18-cv-02089-DLR Document 1 Filed 07/03/18 Page 1 of 14

EXHIBIT B

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collect[] voted or unvoted early ballots from another person,” with a presumptive

sentence of one year of incarceration and a fine of up to $150,000 plus surcharges.

2. Under HB 2023, the term “collects” means “to gain possession or control

of an early ballot.”

3. HB 2023 exempts the collection of early ballots for elections held by

certain special taxing districts and ballots collected by a voter’s family member,

household member, or caregiver. The terms “caregiver,” “family member,” and

“household member” are defined in HB 2023.

4. HB 2023 also exempts “[a]n election official, a United States postal

service worker or any other person who is allowed by law to transmit United States mail

… if the official, worker or other person is engaged in official duties.” However, HB

2023 does not define the phrases “allowed by law to transmit U.S. mail” or “engaged in

official duties.”

5. HB 2023 regulates the handling of U.S. Mail. An unvoted early ballot

delivered to the wrong address is a piece of mail. Also, once sealed in an envelope with

pre-paid postage, a voted early ballot becomes a piece of mail. HB 2023’s prohibition

against collecting and delivering a voted or unvoted early ballot constitutes the

regulation of U.S. Mail.

6. Article I, Section 8, Clause 7 of the United States Constitution authorizes

Congress “[t]o establish Post Offices and post Roads[.]” The Postal Power allows

Congress to regulate the entire postal system. See Ex Parte Rapier, 143 U.S. 110, 113

(1892). Since 1792, Congress has exercised its authority to regulate the handling of

U.S. Mail. See 18 U.S.C. § 1691, et. seq.

7. Specifically, federal law expressly permits the private carriage of mail

without compensation. See 18 U.S.C. § 1696(c).

8. Thus, HB 2023 is preempted by federal law because it prohibits permitted

methods of private carriage of mail-in ballots.


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9. Moreover, HB 2023 directly infringes free-speech rights because it

unconstitutionally restricts Plaintiff’s and other’s access to voluntary, private mail

carriage.

10. HB 2023 is also excessively and unconstitutionally vague because it

exempts a person who is “allowed by law to transmit U.S. mail,” but only if the person

is “engaged in official duties,” and HB 2023 does not define those phrases. Even

though Plaintiff believes she is authorized to transmit U.S. mail because all persons are

authorized to transmit mail, she does not know if she is protected from criminal

sanctions under HB 2023 because she is unable to determine whether she is “engaged in

official duties.”

JURISDICTION AND VENUE

11. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and

1343 over Plaintiff’s claims under the U.S. Constitution, as well as under 42 U.S.C.

§ 1983.

12. The Court has authority to grant declaratory relief under 28 U.S.C.

§§ 2201 and 2202.

13. The Court has authority to award costs and attorneys’ fees under 42

U.S.C. § 1988.

14. Venue is proper in this District under 28 U.S.C. § 1391(b). Defendant is

sued in his official capacity and his official place of business is located within this

District. All of the events giving rise to this Complaint occurred within this District.

The events giving rise to this Complaint are the enactment, within this District, of an

unconstitutional statute of the State of Arizona, and its implementation, enforcement,

and threatened prosecution by Defendant.

PARTIES

15. Plaintiff Rivko Knox is a citizen of Arizona and has resided in this state

since 1966. [Knox Declaration (“Decl.”), attached hereto as Exhibit 1, at ¶ 2.]


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16. Defendant Mark Brnovich is the Arizona Attorney General (“Attorney

General”) and chief legal officer of the State of Arizona. A.R.S. § 41-192(A). Among

other duties, the Attorney General is charged with enforcing state criminal statutes,

including HB 2023. The Attorney General is empowered to enforce state election laws

like HB 2023 “[i]n any election for state office, members of the legislature, justices of

the supreme court, judges of the court of appeals or statewide initiative or referendum,”

A.R.S. § 16-1021. Defendant Brnovich is sued in his official capacity.

ALLEGATIONS

Collecting and delivering mail-in ballots before and after the enactment of HB 2023

17. Plaintiff Rivko Knox (“Plaintiff” or “Ms. Knox”) is active in her

community and is currently a Democratic Precinct Committeeperson (“PC”) for the

Acacia Precinct. [Knox Decl. at ¶ 3.] She is also a longstanding member of the League

of Women Voters of Arizona (“LWVAZ”), which is a non-profit, non-partisan political

membership organization, the fundamental goal of which is to empower citizens to

shape better communities worldwide. [Id.] The LWVAZ seeks to achieve this goal by,

among other things, building public participation in the democratic process and

engaging communities in promoting positive solutions to public policy issues through

education and advocacy. [Id.]

18. A large part of Ms. Knox’s community involvement, both before and

since becoming a PC, is to engage in door-to-door canvassing to initiate direct contact

with individuals to raise awareness about candidates and issues, register voters, and

encourage participation in the democratic process. [Knox Decl. at ¶ 4.]

19. Ms. Knox canvasses every month of every year, regardless of whether it is

an election year. [Knox Decl. at ¶ 5.] On average, Ms. Knox canvasses 1-2 times per

month for 2-3 hours per canvass. [Id. at ¶ 6.] She typically knocks on 20-30 doors

during a single canvass and, on average, someone answers the door approximately 50%

of the time. [Id.]


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20. Ms. Knox often encourages voters to fill out and mail their early, mail-in

ballots when she is canvassing door-to-door in neighborhoods. [Knox Decl. at ¶ 7.]

21. Prior to the 2016 election cycle, Ms. Knox accepted and delivered at least

one voted ballot for a voter that she met while canvassing, and who requested that she

deliver an early ballot. [Knox Decl. at ¶ 8.]

22. Prior to the 2016 election cycle, she desired and was willing to assist

voters who requested that she deliver their voted early ballots to a United States mail

receptacle, the County Recorder’s Office, an early voting center, or a polling place.

[Knox Decl. at ¶ 9.]

23. In 2016, HB 2023 was enacted to prohibit the collection and delivery of

mail-in ballots. HB 2023 amended A.R.S. § 16-1005 by adding the following

provisions: H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties. I. Subsection H of this section does not apply to: 1. An election held by a special taxing district formed pursuant to title 48 for the purpose of protecting or providing services to agricultural lands or crops and that is authorized to conduct elections pursuant to title 48. 2. A family member, household member or caregiver of the voter. For the purposes of this paragraph: (a) “Caregiver” means a person who provides medical or health care assistance to the voter in a residence, nursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home. (b) “Collects” means to gain possession or control of an early ballot. (c) “Family member” means a person who is related to the voter by blood, marriage, adoption or legal guardianship.


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(d) “Household member” means a person who resides at the same residence as the voter.

24. Since the effective date of HB 2023, Ms. Knox is very careful not to offer

to deliver or accept for delivery another person’s early ballot, even if they ask her for

assistance. [Knox Decl. at ¶ 10.]

25. For example, Ms. Knox canvassed for a candidate seeking election in the

Special Election for Congressional District 8 in April 2018. While she was canvassing

on Sunday, April 22, 2018 (two days before the April 24, 2018 Special Election), she

encountered several voters who had not yet mailed their early ballots. Ms. Knox was

required to censor herself by not offering to collect and deliver the voters’ early ballots,

even though she knew based on her experience that it was unlikely that the voters would

deliver their ballots in time to be counted. Rather than offering to collect and deliver

early ballots for these voters on April 22, 2018, Ms. Knox encouraged the voters not to

place their ballots in the mail because it was too late and, instead, to deliver their ballots

to an appropriate location before the polls closed. [Knox Decl. at ¶ 11.]

26. Although Ms. Knox presently desires to collect and deliver—without

compensation—voted, mail-in ballots, she fears doing so as a result of the passage of

HB 2023. [Knox Decl. at ¶ 22.]

27. Indeed, if the statute did not exist and it was not ostensibly illegal to

collect and deliver completed mail-in ballots for voters, Ms. Knox would offer to

deliver ballots for voters she meets while canvassing. [Id.]

28. Further, Ms. Knox would organize canvassing events at nursing homes

and adult community centers for the purpose of collecting and delivering mail-in ballots

of elderly and sick voters. [Knox Decl. at ¶ 25.]

29. Ms. Knox believes that assisting voters with the delivery of their early

ballots was, and continues to be, a part of expressing her political belief that all

registered voters have an opportunity to use their franchise. [Knox Decl. at ¶ 13.]


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30. Specifically, Ms. Knox supports the continued and widespread use of

voting by mail, and believes that the United States’ postal system provides a secure and

easy platform to exercise the franchise and conduct elections. [Knox Decl. at ¶ 16.]

31. In her view, this is especially true today because the number of voters who

receive early ballots by mail increases every year. [Knox Decl. at ¶ 17.]

32. Ms. Knox desires and plans to engage in door-to-door canvasing in

connection with the upcoming 2018 Primary and General Elections, but fears

prosecution if she delivers an early ballot for another person. [Knox Decl. at ¶¶ 20–22.]

33. Ms. Knox sometimes mistakenly receives mail directed to her neighbors

and, in such cases, she takes the piece of mail to her neighbor’s house. Prior to the

passage of HB 2023, Ms. Knox would have freely and without hesitation delivered an

unvoted early ballot to a neighbor if she mistakenly received the neighbor’s early ballot

in her mailbox. As a direct result of HB 2023, Ms. Knox would not follow the same

practice if she mistakenly received a neighbor’s early ballot in her mailbox. [Knox

Decl. at ¶ 27.]

Private-Carriage Exception to the Private Express Statutes

34. Congress enacted the Private Express Statutes, 18 U.S.C. §§ 1693–1699,

39 U.S.C. §§ 601–606, pursuant to its constitutional authority to establish “Post Offices

and post roads,” U.S. Const. art. I, § 8, cl. 7. In general, these statutes establish the

United States Postal Service (“USPS”) as a monopoly by prohibiting others from

carrying letters over postal routes.

35. A postal monopoly has prevailed in this country since the Articles of

Confederation, see Act of Oct. 18, 1782, 23 J. Continental Cong. 672–673 (G. Hunt ed.

1914), and Congress embraced the concept in its first postal law, see Act of Feb. 20,

1792, ch. 7, § 14, 1 Stat. 236. Because Congress desires “prompt, reliable, and efficient

services to [postal] patrons in all areas,” 39 U.S.C. § 101(a), it has enacted the Private

Express Statutes and has provided for nationwide delivery of mail at uniform rates.


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36. From its inception, the monopoly granted the USPS had always been

limited to the carriage of mail “for hire.” See Act of Oct. 18, 1782, 23 J. Continental

Cong. 670, 672–673 (G. Hunt ed. 1914); Act of Feb. 20, 1792, ch. 7, § 14, 1 Stat. 236.

The private-carriage exception is a reflection of the limited nature of the monopoly; it

was designed to ensure that private carriage is not undertaken “for hire or reward.”

Ibid.

37. While the limited nature of the postal monopoly always implied that

private, gratuitous carriage was excepted from the prohibitions of the Private Express

Statutes, Congress made the exception express in 1845. See S. Rep. No. 137, 28th

Cong., 1st Sess., 1, 10 (1844); H.R. Rep. No. 477, 28th Cong., 1st Sess., 1 (1844).

38. Congress developed a narrow exception for carriage by “private hands,”

crafting the exception in such a way as to permit only gratuitous carriage undertaken out

of friendship, not pursuant to a business relationship. H.R. Rep. No. 477, supra, at 4

(“Penalties are provided ... with exceptions in favor of the party ... who conveys the

letter out of neighborly kindness, without fee or reward”).

39. Congress used unambiguous language to accomplish its goals. Persons or

entities other than the United States Postal Service—i.e., “private hands”—may carry

letters without violating the Private Express Statutes only so long as they do not receive

any form of benefit from the sender, i.e., “without compensation.” See 18 U.S.C.

§ 1696(c) (“This chapter shall not prohibit the conveyance or transmission of letters or

packets by private hands without compensation, or by special messenger employed for

the particular occasion only.”); 39 CFR § 310.3(c) (“The sending or carrying of letters

without compensation is permitted.”).

40. In fact, the USPS actually uses Arizona in its published example of

private letter carriage:

Laura Bowley plans to travel to Cottonwood, Arizona. A friend asks Mrs. Bowley to carry a letter to another friend who resides there without payment of any compensation. Such private carriage is permissible under this exception.


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Publication 542 - Understanding the Private Express Statutes (June 2014).

41. Notably, the Postal Service has asserted its authority over the transmission

of “Balloting Materials.” See, e.g., USPS Domestic Mail Manual (“8.0 Balloting

Materials”); Balloting Materials Postage, 78 Fed. Reg. 25677 (proposed May 2, 2013)

(codified at 39 § C.F.R. 111) (requiring all ballot types to indicate that the proper

amount of postage must be paid and requiring balloting materials to indicate the amount

of postage for the return of ballots, unless mailed under the special exemption for

military or overseas voting or returned under Business Reply Mail service).

Attorney General’s Threatened Strict Enforcement

42. Since its enactment, the Defendant has repeatedly emphasized his intent to

prosecute any and all efforts to collect mail-in ballots. For example, in an October 3,

2016 court filing, the Defendant stated:

Because H.B. 2023 is a criminal law, neither county nor state elections officials are responsible for its enforcement. Instead, that task falls to the Attorney General, who intends to act on any information he receives regarding violations of H.B. 2023. See A.R.S. § 16-1021.

Feldman, et al. v. Reagan, et al., No. 16-01065, Dkt. 212 at 18.

43. In light of the above and other statements made by Defendant and his

agents about their intention to strictly enforce HB 2023, Plaintiff faces a credible threat

of prosecution for engaging in her desired conduct—delivering mail-in ballots without

compensation for other Arizona voters.

August 2018 Primary Election

44. Arizona is holding a statewide primary election on August 28, 2018 (the

“2018 Primary Election”).

45. Vote-by-mail ballots will be mailed to Arizona voters on August 1, 2018.

46. Election Officials have informed voters that they must mail their voted

ballot via the United States Postal Service by August 22, 2018. See, e.g.,

https://recorder.maricopa.gov/elections/electioncalendar.aspx.


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47. Plaintiff intends to engage in activities governed by the private-carrier

exception in connection with the 2018 Primary Election—collect and return mail-in

ballots.

48. Plaintiff, however, will not collect and return ballots if she does not obtain

the judicial relief presently requested.

DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

49. An actual and substantial controversy exists between Plaintiff and

Defendant as to their respective legal rights and duties. Plaintiff contends that she has

already been harmed by HB 2023, that she faces an imminent threat of harm if HB 2023

is enforced, and that HB 2023 violates the U.S. Constitution and federal law. Defendant

is obligated to enforce HB 2023 unless it is found to be illegal.

50. In violating Plaintiff’s rights under the U.S. Constitution and federal law,

Defendant will be acting under color of law.

51. If not enjoined, HB 2023 will continue to thwart Plaintiff’s lawful conduct

and subject her to criminal prosecution, and thus cause irreparable injury to Plaintiff.

52. Plaintiff has no plain, speedy, and adequate remedy at law against HB

2023 other than the relief requested in this Complaint.

53. Defendant’s enforcement of HB 2023 constitutes an official policy of the

State of Arizona.

54. Plaintiff is entitled to a declaration that HB 2023 is unconstitutional on its

face and to an order preliminarily and permanently enjoining its enforcement.

FUTURE PLANS AND ONGOING AND IRREPARABLE HARM

55. In the future, Plaintiff intends to take actions materially similar to those

that she desires and intends to take here, if not limited or prohibited by the challenged

laws. Given the recurring election-related context, the usual length of time of litigation

such as this to be finally resolved, and the ongoing restrictions imposed by HB 2023,

there is a strong likelihood that situations similar to those described above will recur

without opportunity for full litigation. Thus, even if this case is not fully litigated


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before the 2018 Primary Election, this case will not be moot because it will be capable

of repetition yet evading review.

56. Plaintiff faces a credible threat of prosecution if she proceeds with her

intended activities without the requested relief.

57. If Plaintiff does not obtain the requested relief, she will not proceed with

her intended activities. In such an event, she will continue to be deprived of her

constitutional rights under the Supremacy Clause, and the First and Fourteenth

Amendments to the United States Constitution and will suffer irreparable harm. There

is no adequate remedy at law.

CLAIMS FOR RELIEF

COUNT ONE

(Supremacy Clause; 42 U.S.C. § 1983)

58. Plaintiff realleges and incorporates by reference all prior paragraphs of

this Complaint as though fully set forth herein.

59. The Supremacy Clause, Article VI, Section 2, of the U.S. Constitution

provides:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.

60. The Supremacy Clause mandates that federal law preempts state law in

any area over which Congress expressly or impliedly has reserved exclusive authority or

which is constitutionally reserved to the federal government, or where state law

conflicts or interferes with federal law.

61. HB 2023 is void in its entirety because it attempts to prohibit and

criminalize conduct that federal law expressly permits. See 18 U.S.C. § 1696(c) (“This

chapter shall not prohibit the conveyance or transmission of letters or packets by private

hands without compensation, or by special messenger employed for the particular


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occasion only.”); 39 CFR § 310.3(c) (“The sending or carrying of letters without

compensation is permitted.”).

62. HB 2023 conflicts with federal law and policy, attempts to legislate in a

field occupied by the federal government, and imposes burdens and penalties not

authorized by and contrary to federal law, each in violation of the Supremacy Clause.

See Arizona v. United States, 567 U.S. 387 (2012) (concluding that federal law

preempted an Arizona statute where “Congress decided it would be inappropriate to

impose criminal penalties” on the conduct criminalized by the state statute).

COUNT TWO

(First Amendment; 42 U.S.C. § 1983)



64. The First Amendment to the U.S. Constitution provides that “Congress

shall make no law . . . abridging the freedom of speech . . . .” The First Amendment’s

guarantees are applied to the States through the Fourteenth Amendment.

65. “It is axiomatic that restrictions upon the mail system implicate the First

Amendment.” Currier v. Potter, 379 F.3d 716, 727 (9th Cir. 2004); see also Blount v.

Rizzi, 400 U.S. 410, 416 (1971) (“The United States may give up the Post Office when

it sees fit, but while it carries it on the use of the mails is almost as much a part of free

speech as the right to use our tongues . . . .”); Bolger v. Youngs Drug Prods. Corp., 463

U.S. 60, 80 (1983) (Rehnquist, J., concurring in the judgment) (“A prohibition on the

use of the mails is a significant restriction of First Amendment rights.”).

66. HB 2023’s prohibition against private mail carriage is an unlawful

restraint on protected speech.

67. Plaintiff seeks to engage in the private carriage of mail-in ballots in the

2018 Primary Election, but because the Defendant has threatened her and others with

criminal sanctions for doing so, she credibly fears engaging in such conduct.


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68. Although HB 2023 may not discriminate among viewpoints, HB 2023

constitutes a content-based speech restriction because it provides restrictions on the

delivery of mail based on the mail’s subject matter—ballots.

COUNT THREE

(Excessive Vagueness in Violation of the Due Process Clause of the Fourteenth Amendment; 42 U.S.C. § 1983)



70. The Due Process Clause of the Fourteenth Amendment provides that “No

state shall . . . deprive any person of life, liberty, or property, without due process of

law.” It is “a basic principle of due process that an enactment is void for vagueness if

its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104,

108 (1972).

71. The criminal penalties in HB 2023 are triggered if a person is deemed to

have “collected” an early ballot of another person. However, HB 2023 confusingly

states that, “any [] person who is allowed by law to transmit United States mail is

deemed not to have collected an early ballot if the … person is engaged in official

duties.” However, the phrase “allowed by law to transmit United States mail” is

undefined and vague. In addition, the phrase, “engaged in official duties” is inherently

unclear, as the phrase can be understood to apply only to government employees or

officials in the scope of their employment. Indeed, under federal law, all persons are

authorized to deliver mail as long as it is done so without compensation.

72. Because HB 2023 imposes significant criminal penalties on individuals

that collect and deliver early ballots in violation of the statute, the vagaries of the phrase

“any [] person who is allowed by law to transmit United States mail is deemed not to

have collected an early ballot if the … person is engaged in official duties” present

particularly grave dangers. A person that makes an honest and reasonable

determination that she is permitted to deliver a piece of mail under federal law may


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nevertheless face a presumptive sentence of one year of incarceration and a fine of up to

$150,000 plus surcharges. Those dangers are compounded by the inherent vagueness of

the phrase “engaged in official duties,” which invites arbitrary or discriminatory

enforcement of HB 2023 by the Attorney General. Moreover, the vagueness implicates

fundamental free speech concerns under the First Amendment.

73. HB 2023 is therefore void for vagueness in violation of the Due Process

Clause.

PRAYER FOR RELIEF

WHEREFORE, in light of the foregoing facts and arguments, Plaintiff requests

that the Court:

A. Assume jurisdiction over this matter;

B. Declare that HB 2023 is unconstitutional in its entirety;

C. Preliminarily and permanently enjoin Defendant, his officers, agents,

servants, employees, and attorneys, and those officials in active concert or participation

with him from implementing or enforcing HB 2023;

D. Award Plaintiff’s costs of suit, reasonable attorneys’ fees, and other

expenses pursuant to 42 U.S.C. § 1988; and

E. Grant such other relief as the Court may deem appropriate.

Respectfully submitted this 3rd day of July, 2018.

COPPERSMITH BROCKELMAN PLC By s/ Roopali H. Desai

Roopali H. Desai

SCHARFF PLC By s/ Spencer G. Scharff

Spencer G. Scharff



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Spencer G. Scharff (028946) SCHARFF PLC 502 West Roosevelt Street Phoenix, Arizona 85003 T: (602) 739-4417 [email protected]

Roopali H. Desai (024295) COPPERSMITH BROCKELMAN PLC 2800 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 T: (602) 381-5490 F: (602) 224-6020 [email protected]


UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Rivko Knox,

Plaintiff,

v.

Mark Brnovich, in his official capacity as Arizona Attorney General,

Defendant.

No.

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION OF HB 2023 AND MEMORANDUM IN SUPPORT THEREOF

(Oral Argument Requested)

(Expedited Relief Requested)

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiff Rivko

Knox (“Plaintiff”) respectfully requests that the Court preliminarily enjoin Defendant

Mark Brnovich, in his official capacity as the Attorney General of Arizona, from

implementing or enforcing Arizona House Bill 2023, enacted as 2016 Session Law

Chapter 5 and codified at A.R.S. § 16-1005(H)-(I). Pursuant to Rule 65(a)(2), Plaintiff

also requests that the Court consolidate the hearing on this Motion with the trial on the

merits. This Motion is supported by the following Memorandum of Points and

Authorities and the Knox Declaration attached to Plaintiff’s Complaint.


EXHIBIT C

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MEMORANDUM AND POINTS OF AUTHORITIES

I. INTRODUCTION

This action challenges the constitutionality of A.R.S. § 16-1005(H), which was

amended by House Bill (“HB”) 2023 in 2016 (hereinafter referred to as “HB 2023”),

because it is preempted by federal law. Since 1792, Congress has exercised its authority

to regulate the handling of U.S. Mail. See 18 U.S.C. § 1691, et. seq. Specifically,

federal law expressly permits the private carriage of mail without compensation. See 18

U.S.C. § 1696(c). Indeed, Article I, Section 8, Clause 7 of the United States

Constitution authorizes Congress “[t]o establish Post Offices and post Roads[.]” The

Postal Power allows Congress to regulate the entire postal system. See Ex Parte Rapier,

143 U.S. 110, 113 (1892).

Yet HB 2023 unlawfully regulates the handling of U.S. Mail by prohibiting the

collection and delivery of early ballots.1 In other words, HB 2023 criminalizes lawful

conduct—the “collection” and delivery of another person’s early ballot. Specifically,

HB 2023 makes it a class 6 felony for any person to gain possession or control of a

mail-in ballot from another person, except in a limited number of narrow circumstances,

with a presumptive sentence of one year of incarceration and a fine of up to $150,000

plus surcharges. An unvoted early ballot, once mailed, is a piece of mail. Likewise,

once sealed in an envelope with pre-paid postage, a voted early ballot becomes a piece

of mail. Both are regulated by federal law. Thus, HB 2023 is preempted by federal law

because it prohibits permitted methods of private carriage of early ballots.

1 Arizona law provides that, [a]ny election called pursuant to the laws of th[e] state shall provide for early voting[,]” and, moreover, “[a]ny qualified elector may vote by early ballot.” A.R.S. § 16-541(A). An “early ballot shall be one prepared for use in the precinct in which the applicant resides and, if a partisan primary election, of the political party with which the applicant is affiliated…,” and “[t]he ballot shall be identical with the regular official ballots, except that it shall have printed or stamped on it ‘early.’” A.R.S. § 16-545(A). Early ballots, which are commonly referred to as “mail-in” ballots, must be accompanied with return envelopes that protect “the voter’s selections and that is tamper evident when properly sealed.” A.R.S. § 16-545(B)(2).


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HB 2023 suffers from other constitutionally fatal flaws as well. The law directly

infringes on free-speech rights because it unconstitutionally restricts Plaintiff’s access to

voluntary, private mail carriage.

Further, HB 2023’s description of persons who are deemed not to have

“collected” early ballots in violation of the law is unconstitutionally vague; it states that


have collected an early ballot,” but only if the “person is engaged in official duties.”

First, federal law allows all persons to transmit United States mail, as long as they are

doing so without charging a fee. Second, HB 2023 does not define what it means for a

person to be “engaged in official duties.” Thus, even if state law could impose

additional requirements to authorize the lawful delivery of mail, which it cannot do, it is

impossible to know if a person satisfies the arbitrary test set forth in the statute.

Unless enjoined, HB 2023 will cause irreparable harm to Plaintiff. HB 2023

effectively eliminates the ability for private citizens like Plaintiff to assist with the

delivery of mail-in ballots, notwithstanding the fact that federal law authorizes such

conduct. The broad prohibition against the “collection” and delivery of another

person’s early ballot, coupled with the harsh statutory penalties and ambiguous

compliance requirements, have caused Plaintiff to stop delivering ballots for voters who

request assistance. Such “loss of First Amendment freedoms” “unquestionably

constitutes irreparable injury.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th

Cir. 2009), cert. denied, 130 S. Ct. 1706 (2010).

On the one hand, Plaintiff will suffer irreparable harm because a deprivation of

constitutional rights constitutes irreparable harm. On the other hand, the government

cannot suffer harm from an injunction that merely ends an unlawful practice. Moreover,

the public has no interest in Defendant continuing a policy that violates the Supremacy

Clause, the First Amendment, and the Due Process Clause of the Fourteenth

Amendment. Plaintiff easily satisfies the requirements for a preliminary injunction and,

therefore, this Court should grant Plaintiff’s Motion.


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II. FACTS

A. The History of Private Mail Carriage in the United States.

Congress enacted the Private Express Statutes, 18 U.S.C. §§ 1693–1699,

pursuant to its constitutional authority to establish “Post Offices and post roads,” U.S.

Const. art. I, § 8, cl. 7. In general these statutes establish the United States Postal

Service (“USPS”) as a monopoly by prohibiting others from carrying letters over postal

routes. A postal monopoly has prevailed in this country since the Articles of

Confederation, see Act of Oct. 18, 1782, 23 J. Continental Cong. 672–673 (G. Hunt ed.

1914), and Congress embraced the concept in its first postal law, see Act of Feb. 20,

1792, ch. 7, § 14, 1 Stat. 236. From its inception, the monopoly granted the USPS had

always been limited to the carriage of mail “for hire.” See Act of Oct. 18, 1782, 23 J.

Continental Cong. 670, 672–673 (G. Hunt ed. 1914); Act of Feb. 20, 1792, ch. 7, § 14, 1

Stat. 236. The Private-Carriage Exception is a reflection of the limited nature of the

monopoly; it was designed to ensure that private carriage is not undertaken “for hire or

reward.” Id.

While the limited nature of the postal monopoly always implied that private,

gratuitous carriage was excepted from the prohibitions of the Private Express Statutes,

Congress made the exception express in 1845—the “Private-Carriage Exception.” See

S. Rep. No. 137, 28th Cong., 1st Sess., 1, 10 (1844); H.R. Rep. No. 477, 28th Cong., 1st

Sess., 1 (1844). The Private-Carriage Exception represents a narrow exception for

carriage by “private hands,” which was crafted to permit only gratuitous carriage

undertaken out of friendship, not pursuant to a business relationship. H.R. Rep. No.

477, supra, at 4 (“Penalties are provided ... with exceptions in favor of the party ... who

conveys the letter out of neighborly kindness, without fee or reward”).

B. HB 2023

On March 9, 2016, the Arizona Legislature passed HB 2023 and, on the same

day, the Governor approved and signed the law. Although HB 2023 on its face seeks to


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prohibit the collection and delivery of early ballots, in practice, it regulates the handling

of U.S. Mail. Specifically, HB 2023 provides:

H. A person who knowingly collects voted or unvoted early ballots from another person is guilty of a class 6 felony. An election official, a United States postal service worker or any other person who is allowed by law to transmit United States mail is deemed not to have collected an early ballot if the official, worker or other person is engaged in official duties.

I. Subsection H of this section does not apply to:

1. An election held by a special taxing district formed pursuant to title 48 for the purpose of protecting or providing services to agricultural lands or crops and that is authorized to conduct elections pursuant to title 48.

2. A family member, household member or caregiver of the voter. For the purposes of this paragraph:

(a) “Caregiver” means a person who provides medical or health care assistance to the voter in a residence, nursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility or adult foster care home.

(b) “Collects” means to gain possession or control of an early ballot.

(c) “Family member” means a person who is related to the voter by blood, marriage, adoption or legal guardianship.

(d) “Household member” means a person who resides at the same residence as the voter.

Notably, HB 2023 does not define the phrases “allowed by law to transmit United States

mail” or “engaged in official duties,” and, therefore, it is unclear who is exempt from

the broad prohibitions against collecting and delivering another person’s early ballot.

C. Plaintiff’s Voter Outreach Activities Curtailed.

1. Plaintiff is active in her community and is currently a Democratic Precinct

Committeeperson (“PC”) for the Acacia Precinct. [Knox Declaration (“Decl.”),

attached to Plaintiff’s Complaint as Exhibit 1, at ¶ 2.] She is also a longstanding

member of the League of Women Voters of Arizona (“LWVAZ”), which is a non-

profit, non-partisan political membership organization, the fundamental goal of which is

to empower citizens to shape better communities. [Id.] A large part of Ms. Knox’s


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community involvement is to engage in door-to-door canvassing to initiate direct

contact with individuals to raise awareness about candidates and issues, register voters,

and encourage participation in the democratic process. [Id. at ¶ 4.] And, she canvasses

regularly—almost every month of every year—regardless of whether it is an election

year. [Id. at ¶ 5.] Specifically, she canvasses 1-2 times per month for 2-3 hours per

canvass, and typically knocks on 20-30 doors during a single canvass. [Id. at ¶ 6.]

When canvassing, Ms. Knox encourages voters to look out for and then complete and

mail their early, mail-in ballots. [Id. at ¶ 7.]

Of particular relevance to this case, prior to the 2016 election cycle, Ms. Knox

accepted and delivered at least one voted ballot for a voter she met while canvassing.

[Id. at ¶ 8.] (She may have also accepted and delivered other early ballots prior to the

2016 election cycle.) [Id.] Ms. Knox did so because she desired and was willing to

assist voters who requested that she deliver their voted early ballot to a United States

Mail receptacle, the County Recorder’s Office, an early voting center, or a polling

place. [Id. at ¶ 9.] However, since the effective date of HB 2023, she is prohibited from

collecting and delivering another person’s early ballot. [Id. at ¶ 10.] In fact, she is very

careful not to offer to deliver or accept for delivery another person’s early ballot, even if

they ask her to assist with their ballot. [Id.]

The prohibition imposed by HB 2023 is adversely impacting Ms. Knox. For

example, while she was canvassing for a candidate seeking election in the Special

Election for Congressional District 8 on Sunday, April 22, 2018 (two days before the

April 24, 2018 Special Election), she encountered several voters who had not yet mailed

their early ballots, but she was unable to assist them due to HB 2023. [Id. at ¶ 11.]

Specifically, Ms. Knox was required to censor herself by not offering to collect and

deliver the voters’ early ballots, even though it was unlikely the voters would timely

return their ballots. [Id.] She could not and did not offer or agree to deliver early

ballots on behalf of these voters because she feared criminal sanctions under HB 2023.

[Id. at ¶ 12; see also id. at ¶¶ 20, 22, 24, and 28.]


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Ms. Knox believes that voting is the most fundamental right in a democratic

society and she is committed to helping qualified electors exercise their right to vote

regardless of who they vote for. [Id. at ¶ 15.] She wishes to express this belief, in part,

by assisting voters with the delivery of their early ballots. [Id. at ¶ 13.] Indeed, Ms.

Knox supports the continued and widespread use of voting by mail, and believes that

the United States’ postal system provides a secure and easy platform to exercise the

franchise and conduct elections. [Id. at ¶ 16.] During each election cycle, there comes a

time when it is too late for voters to mail their early ballots by regular mail because they

will not be received in time to be counted. Leading up to and after this time, Ms. Knox

increases her voter outreach through door-to-door canvassing and it is during this time

that she particularly desires to assist voters with the delivery of their early ballots. [Id.

at ¶ 18.]

Alas, however, Ms. Knox is unable to offer or agree to deliver mail-in ballots for

qualified electors because she fears prosecution under HB 2023. [Id. at ¶¶ 20, 22, 24,

and 28.] Indeed, but for HB 2023, Ms. Knox would do more to assist voters, including

organizing canvassing events at nursing homes and adult community centers for the

purpose of collecting and delivering mail-in ballots of elderly and sick voters. [Id. at

¶ 25.]

Arizona is holding a statewide primary election on August 28, 2018 (the “2018

Primary Election”). Vote-by-mail ballots will be mailed to Arizona voters on August 1,

2018. Election Officials have informed voters that they must mail their voted ballot via

the United States Postal Service by August 22, 2018. See, e.g.,

https://recorder.maricopa.gov/elections/electioncalendar.aspx. Plaintiff wishes and

intends to engage in activities governed by the private-carrier exception in connection

with the 2018 Primary Election—collect and return mail-in ballots. [Knox Decl. at

¶¶ 21-22, 26.]

Plaintiff faces a credible threat of prosecution if she proceeds with her intended

activities without the requested relief. Plaintiff, however, will not collect and return


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ballots if she does not obtain the judicial relief presently requested. In such an event,

she will be deprived of her constitutional rights under the Supremacy Clause and the

First and Fourteenth Amendments to the United States Constitution and will suffer

irreparable harm.

III. ARGUMENT

Plaintiffs seeking a preliminary injunction must establish that: (1) they are likely

to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of

preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is

in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The

Ninth Circuit weighs these factors on a sliding scale, such that where there are only

“serious questions going to the merits”—that is, less than a “likelihood of success” on

the merits—a preliminary injunction may still issue so long as “the balance of hardships

tips sharply in the plaintiff’s favor” and the other two factors are satisfied. Shell

Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

A. Plaintiff Is Likely to Succeed on the Merits.

HB 2023 regulates the delivery of a specific-subset of mail—mail-in ballots.

This is undisputable. It says (albeit, vaguely) who can and cannot deliver mail-in

ballots, and provides severe criminal consequences for violators. This law comports

with Arizona’s recent history of enacting laws, which have consistently been struck

down, that invade the Federal Government’s plenary authority. See, e.g., Arizona v.

United States, 567 U.S. 387 (2012) (holding that “§§ 3, 5(C), and 6 of S.B. 1070 are

preempted”); Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017), cert.

denied, 138 S. Ct. 1279 (2018) (concluding Arizona’s policy of denying licenses to

noncitizens with certain employment authorization documents was preempted violated

the Supremacy Clause because it “encroache[d] on the exclusive federal authority to

create immigration classifications”); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1012

(9th Cir. 2013) (affirming the trial court’s preliminary injunction against A.R.S. § 13–


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2929, “which attempts to criminalize the harboring and transporting of unauthorized

aliens within the state of Arizona,” because the statute is “preempted by federal law and

thus invalid under the Supremacy Clause.”); Valenzuela v. Ducey, No. CV-16-03072-

PHX-DGC, 2018 WL 3069464, at *1 (D. Ariz. June 21, 2018) (concluding Arizona’s

policy of denying licenses to noncitizens with certain employment authorization

documents was preempted); Puente Arizona v. Arpaio, No. CV-14-01356-PHX-DGC,

2017 WL 1133012, at *17 (D. Ariz. Mar. 27, 2017) (permanently enjoining certain

Arizona statutes, which interfered with federal immigration law); Nation v. City of

Glendale, 804 F.3d 1292, 1301 (9th Cir. 2015) (holding that “H.B. 2534 is invalid based

on federal preemption”); We Are Am. v. Maricopa Cty. Bd. of Supervisors, 297 F.R.D.

373, 377 (D. Ariz. 2013) (holding A.R.S. § 13–2319 “conflicts with federal immigration

law”).

1. Federal Law Preempts HB 2023.

“The Supremacy Clause provides a clear rule that federal law ‘shall be the

supreme Law of the Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”

Arizona v. United States, 567 U.S. 387, 399 (2012) (quoting U.S. Const. art. VI, cl. 2).

Under this clause, “Congress has the power to preempt state law.” Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 372 (2000). Federal law may preempt state law

in three ways: (1) express preemption, where Congress states in express terms the

preemptive effect of a federal law, (2) field preemption, where “federal regulation in a

particular field is so pervasive as to make reasonable the inference that Congress left no

room for the States to supplement it,” and (3) conflict preemption, where “compliance

with both federal and state regulations is a physical impossibility.” Aguayo v. U.S. Bank,

653 F.3d 912, 918 (9th Cir. 2011) (quoting Bank of Am. v. City & Cty. of San Francisco,

309 F.3d 551, 558 (9th Cir. 2002)).

This case focuses on field and conflict preemption. Field preemption precludes

states “from regulating conduct in a field that Congress, acting within its proper


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authority, has determined must be regulated by its exclusive governance.” Id. (citing

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 115 (1992)). Conflict

preemption occurs “where compliance with both federal and state regulations is a

physical impossibility,” and “where the challenged state law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” Id.

(internal citations and quotation marks omitted).

a. Conflict Preemption: HB 2023 is in conflict with the Private-Carriage Exception.

As discussed in detail above, the Private-Carriage Exception exempts individuals

who carry mail without compensation from the Private Express Statute’s criminal

sanctions. See Section II(A), supra. This Congressionally-mandated exemption is

longstanding and employs unambiguous language to accomplish its goals. Persons or

entities other than the United States Postal Service—i.e., “private hands”—may carry

letters without violating the Private Express Statutes only so long as they do not receive

any form of benefit from the sender, i.e., “without compensation.” See 18 U.S.C.

§ 1696(c) (“This chapter shall not prohibit the conveyance or transmission of letters or

packets by private hands without compensation, or by special messenger employed for

the particular occasion only.”); 39 CFR § 310.3(c) (“The sending or carrying of letters

without compensation is permitted.”).

In fact, the USPS uses Arizona in its published example of the Private-Carriage

Exception:

Laura Bowley plans to travel to Cottonwood, Arizona. A friend asks Mrs. Bowley to carry a letter to another friend who resides there without payment of any compensation. Such private carriage is permissible under this exception.

Publication 542 - Understanding the Private Express Statutes (June 2014).2

2 The PES also permits private parties to deliver letters to a mailbox/post office:

The private carriage of letters which enter the mail stream at some point between their origin and their destination is permissible.


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Although sanctioned by federal law, under HB 2023, Ms. Bowley would be

committing a class 6 felony if she took her friend’s mail-in ballot to the nearest post

office or to the Yavapai County Recorder’s Office. Thus, HB 2023 is preempted

because it directly conflicts the federal Private Express Statutes. See Arizona v. United

States, 567 U.S. 387, 406 (2012) (concluding that federal law preempted an Arizona

statute where “Congress decided it would be inappropriate to impose criminal penalties”

on the conduct criminalized by the state statute).

b. Field Preemption: Congress has occupied the field of the regulation of postal mail.

“States are precluded from regulating conduct in a field that Congress, acting

within its proper authority, has determined must be regulated by its exclusive

governance.” Id. at 399. Congressional intent to displace state law can be inferred from

either “a federal interest...so dominant that the federal system will be assumed to

preclude enforcement of state laws,” or where “a framework of regulation [is] so

pervasive...that Congress left no room for the States to supplement it[.]” Id. (internal

quotations omitted). “The question whether the regulation of an entire field has been

reserved by the Federal Government is, essentially, a question of ascertaining the intent

underlying the federal scheme.” Hillsborough Cty. Fla. v. Automated Med. Labs., Inc.,

471 U.S. 707, 714 (1985).

Congress has occupied the field of the regulation of postal mail. The postal

“power possessed by Congress” under Article I, section 8, “embraces the regulation of

the entire Postal System of the country”; Congress alone has “‘[t]he right to designate

what shall be carried’” and “‘what shall be excluded.’” USPS v. Council of Greenburgh

Civic Ass’ns, 453 U.S. 114, 126–27 (1981) (quoting Ex Parte Jackson, 96 U.S. 727, 732

(1878)).

39 CFR 310.3(e)(1).


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Notably, the Postal Service has asserted its authority over the transmission of

“Balloting Materials.” See, e.g., USPS Domestic Mail Manual (“8.0 Balloting

Materials”); Balloting Materials Postage, 78 Fed. Reg. 25677 (proposed May 2, 2013)

(codified at 39 C.F.R. § 111) (requiring all ballot types to indicate that the proper

amount of postage must be paid and to requiring balloting materials to indicate the

amount of postage for the return of ballots, unless mailed under the special exemption

for military or overseas voting or returned under Business Reply Mail service). Thus,

HB 2023 is preempted because Congress has occupied the field of the regulation of

mail.

2. HB 2023 Violates Plaintiff’s First Amendment Rights.

“The First Amendment, applicable to the States through the Fourteenth

Amendment, prohibits laws that abridge the freedom of speech. When enforcing this

prohibition, our precedents distinguish between content-based and content-neutral

regulations of speech.” Nat’l Inst. of Family & Life Advocates v. Becerra, No. 16-1140,

2018 WL 3116336, at *7 (U.S. June 26, 2018). Content-based regulations “target

speech based on its communicative content.” Reed v. Town of Gilbert, 35 S. Ct. 2218,

2226 (2015). As a general matter, such laws “are presumptively unconstitutional and

may be justified only if the government proves that they are narrowly tailored to serve

compelling state interests.” Id. This stringent standard reflects the fundamental

principle that governments have “no power to restrict expression because of its

message, its ideas, its subject matter, or its content.” Id. (internal citations omitted).

As discussed above, HB 2023 constitutes a regulation on the use and delivery of

mail. As such, it constitutes a speech restriction. See Currier v. Potter, 379 F.3d 716,

727 (9th Cir. 2004) (“It is axiomatic that restrictions upon the mail system implicate the

First Amendment.”); see also Blount v. Rizzi, 400 U.S. 410, 416 (1971) (“The United

States may give up the Post Office when it sees fit, but while it carries it on the use of

the mails is almost as much a part of free speech as the right to use our tongues....”);

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 80 (1983) (Rehnquist, J., concurring


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in the judgment) (“A prohibition on the use of the mails is a significant restriction of

First Amendment rights.”).

HB 2023’s restrictions only apply to a certain subset of mail—mail-in ballots.

Arizona does not impose any similar restrictions on the collection of other forms of

mail. In sum, HB 2023 constitutes a presumptively unconstitutional, content-based

restriction on noncommercial speech.

3. Alternatively, HB 2023 Is Unconstitutionally Vague.

HB 2023 is also unconstitutional because its definition of when a person is

deemed not to have collected an early ballot is excessively vague and incapable of being

predictably or consistently applied. Vagueness in a statute is constitutionally repugnant

because it has the effect of “trap[ping] the innocent by not providing fair warning” and

of “delegat[ing] basic policy matters” to those who enforce the law “for resolution on an

ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 108–09

(1972).

Specifically, a statute is unconstitutionally vague on its face if it “fails to provide

a person of ordinary intelligence fair notice of what is prohibited, or is so standardless

that it authorizes or encourages seriously discriminatory enforcement.” United States v.

Williams, 553 U.S. 285, 304 (2008). “Vague statutes are invalidated for three reasons:

(1) to avoid punishing people for behavior that they could not have known was illegal;

(2) to avoid subjective enforcement of laws based on ‘arbitrary and discriminatory

enforcement’ by government officers; and (3) to avoid any chilling effect on the

exercise of First Amendment freedoms.” Humanitarian Law Project v. Mukasey, 552

F.3d 916, 928 (9th Cir. 2009) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 638

(9th Cir. 1998)) (internal quotation marks omitted).

Here, HB 2023 exempts from its restrictions (1) election officials, (2) USPS

workers, and (3) “any other person who is allowed by law to transmit United States

mail” provided that “the official, worker, or other person is engaged in official duties.”

A.R.S. § 16-1005(H). Yet, the statute does not provide any guidance as to “who is


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allowed by law to transmit United States mail” or as to the parameters of conduct that

constitutes “official duties.” Given that the Private-Carriage Exception permits

individuals, like the Plaintiff, from delivering, without compensation, mail for others,

Plaintiff should certainly qualify as an individual who is “allowed by law to transmit

United States mail,” but it is not clear if such activity would qualify as “official duties.”

Because HB 2023 imposes significant criminal penalties on individuals that

collect and deliver early ballots in violation of the statute, the vagaries of the phrase


have collected an early ballot” present particularly grave dangers. A person that makes

an honest and reasonable determination that she is permitted to deliver a piece of mail

under federal law may nevertheless face a presumptive sentence of one year of

incarceration and a fine of up to $150,000 plus surcharges. Those dangers are

compounded by the inherent vagueness of the phrase “engaged in official duties,” which

invites arbitrary or discriminatory enforcement of HB 2023 by the Attorney General.

HB 2023 implicates both of the constitutional evils that the vagueness doctrine is

designed to guard against: It fails to provide “fair warning,” thereby threatening to “trap

the innocent,” Grayned, 408 U.S. at 108, and “it may authorize and even encourage

arbitrary and discriminatory enforcement,” City of Chicago v. Morales, 527 U.S. 41, 56

(1999). The vagueness of HB 2023’s “allowed by law to transmit United States mail”

and “engaged in official duties” phrases is especially harmful because a reasonable, but

ultimately incorrect, guess as to what the statute means could result in criminal

penalties.

This ambiguity has had and will continue to have a chilling effect on Plaintiff

and others. Therefore, HB 2023 is unconstitutionally vague.

B. Plaintiff Will Suffer Irreparable Harm Absent an Injunction.

This requirement is satisfied under Ninth Circuit law. A deprivation of

constitutional rights constitutes irreparable harm. Melendres v. Arpaio, 695 F.3d 990,

1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights


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‘unquestionably constitutes irreparable injury.’”); Nelson v. Nat’l Aeronautics & Space

Admin., 530 F.3d 865, 882 (9th Cir. 2008) (“Unlike monetary injuries, constitutional

violations cannot be adequately remedied through damages and therefore generally

constitute irreparable harm.”), rev’d on other grounds, 562 U.S. 134 (2011). Notably,

the Ninth Circuit has applied this principle in preemption cases. See Am. Trucking

Ass’n, Inc. v. City of L.A., 559 F.3d 1046, 1058 (9th Cir. 2009) (“[T]he constitutional

violation alone, coupled with the damages incurred, can suffice to show irreparable

harm. The Supreme Court has implied as much.”) (citing Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 381 (1992)); United States v. Arizona, 641 F.3d 339, 366

(9th Cir. 2011) (We have “stated that an alleged constitutional infringement will often

alone constitute irreparable harm.”), rev’d in part on other grounds, 567 U.S. 387

(2012); see also United States v. Arizona, 703 F. Supp. 2d 980, 1006–07 (D. Ariz.

2010).

Here, as noted above, HB 2023 infringes Plaintiff’s constitutionally protected

free speech rights, causing her irreparable injury and warranting issuance of a

preliminary injunction. See Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th

Cir. 2009) (finding irreparable injury where plaintiff demonstrated a likelihood of

success on the merits of his claims “[g]iven the free speech protections at issue in th[e]

case”).

C. The Public Interest and Balance of Equities Tip Sharply in Plaintiff’s Favor.

In deciding whether to grant a preliminary injunction, “courts must balance the

competing claims of injury and must consider the effect on each party of the granting or

withholding of the requested relief ... [and] should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S.

at 24 (quotation marks and citations omitted). Addressing these factors with respect to a

preliminary injunction in the Dream Act case, the Ninth Circuit held:


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[B]y establishing a likelihood that Defendants' policy violates the U.S. Constitution, Plaintiffs have also established that both the public interest and the balance of the equities favor a preliminary injunction. It is clear that it would not be equitable or in the public’s interest to allow the state to violate the requirements of federal law, especially when there are no adequate remedies available. On the contrary, the public interest and the balance of the equities favor prevent[ing] the violation of a party’s constitutional rights.

Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014) (quotation marks

and citations omitted).

This reasoning applies here. The government “cannot suffer harm from an

injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d

1127, 1145 (9th Cir. 2013). And the public has little interest in Defendant continuing a

policy that violates the Supremacy Clause and the First Amendment.

IV. CONCLUSION

For the foregoing reasons, Plaintiff Rivko Knox respectfully requests that this

Court issue a preliminary injunction, enjoining Defendant from enforcing HB 2023.

Plaintiff also requests, pursuant to Rule 65(a)(2), that the Court consolidate the hearing

on this Motion with the trial on the merits.

Finally, Plaintiff respectfully requests an award of attorneys’ fees, costs, and

expenses under 42 U.S.C. § 1988. Upon entry of an order granting Plaintiff’s Motion,

Plaintiff will file and serve a motion for award of attorneys’ fees and related non-taxable

expenses.

Respectfully submitted this 3rd day of July, 2018.

COPPERSMITH BROCKELMAN PLC By s/ Roopali H. Desai

Roopali H. Desai

SCHARFF PLC By s/ Spencer G. Scharff (w/ permission)

Spencer G. Scharff



MEMORANDUM

Client: Citizens Clean Elections Commission Project: Governor Search Engine Marketing Ad Subject: Additional Questions Date: July 16, 2018

1. Was the employee a regular member of the team that works on the CleanElections account?

Yes, the employee was recently hired (2/5/18) as a full time employee at RIESTER whose responsibility was to provide strategic and tactical recommendations for clients’ media needs such as search and digital media. The employee’s title is Digital Media Strategist and he had eight years experience performing paid digital media prior to being hired at RIESTER.

2. Was it determined by your office that there were no political or unprofessionalmotivations? Was it simply a matter of not following approval protocols?

There were no underlying political or unprofessional motivations. Our media director directly discussed the nature of the incident and the tone of the Adwords copy with the employee to identify if this was politically motivated and concluded that it was a series of missteps.

While assessing the performance of the original debates campaign (client-approved and absent any specific candidate names) the employee noticed that the Adwords campaign had been performing with low search volume. In an attempt to increase impressions and awareness, the employee performed a keyword assessment and determined that candidate names and the word “defend” were frequently searched and would deliver a higher amount of impressions.

The employee then developed a recommendation for all debates using candidates’ names to share with the CCEC team members as a method to increase search volume/traffic to the CCEC website. That recommendation was verbally discussed in status meetings. A formal document was never handed out

ITEM IV - Riester Responses

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though, because through the dialogue it was concluded that this path was not desirable. The CCEC team immediately declined this approach.

Meanwhile because the ad in question, with the use of names, had been drafted in the corresponding software, it, regretfully, remained in the system. It was then accidentally set live without approval.

Subsequently, the substance of the ad was sourced from the CCEC website. The employee overlooked the line through the name of Governor Doug Ducey. He made a mistake.

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3. Please provide more detail on the process RIESTER follows for developing a clientrecommendation for SEM:

I ask this specifically because the language in the ad is very different than the typical copy/key words we utilize. Terms like “defend his record”, the incorrect date, and founded in 1998, are not usual terms we employ. Overall, the ad is very different than what CCEC would approve, so I would actually not imagine RIESTER even providing something like this as a recommendation to us. The way I read the outcome of the process, it could be implied that CCEC typically employs these types of ads, with this tone and wording, and it simply ran before being approved by the client. It feels like more needs to be said about how this was even considered to be a draft.

The standard process to provide clients with a SEM recommendation is as follows: 1. Review account and identify opportunity for additional volume2. Write ad copy in AdWords Editor (desktop application)3. Send recommendation to client for review4. Upload approved ads from AdWords Editor into the live platform5. If ads are not yet approved, ads are paused upon upload

The employee did not grasp the true role and responsibility of CCEC and its need to remain unbiased in all efforts nor did he understand the CCEC brand and tone. The employee’s role is a mathematically driven function within the business and the employee focused on getting maximum impressions for CCEC. If the campaign is not performing (the allocated budget is not generating the recommended impressions) the employee is not doing his/her job.

The recommendations that were in place did not fully utilize the allocated media dollars. The employee developed the above mentioned recommendation for all debates using candidates’ names to share with the CCEC team members as a recommendation on how to increase search volume/traffic to the CCEC website. That recommendation was discussed in status meetings, but the document was never handed out as the CCEC team immediately declined this approach.

Unfortunately, the recommended ad copy was not taken out of the system and the first ad was accidentally set live without approval.

4. Was this the only unauthorized ad? We still need clarification on how it was justthis particular office.

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Yes. This was the only debate-related ad with the use of a candidate name that went live. It was the first ad on the list of the draft recommendation using candidate names uploaded into Google Adwords and it was the only one accidently set live.

5. How could an unauthorized ad run for 3 weeks without being noticed by a teammember? Are there internal controls established that monitor what is in market, iswhat actually should be in market (after an approved ad goes live)?

It went undetected because this specific ad, because of its topic, was bundled into the original (and approved) debate search campaign without use of candidate names. This campaign employed generic terms related to debates like party and name of the state office.

The campaign, as a whole, is optimized for performance twice weekly by the paid search employee assigned to the account. Optimization occurs based on the recommended bid provided by Google. In this particular instance, the search terms/campaign specifics were not reviewed during that process. The employee only focused on reviewing the numbers. We will set up an automated report moving forward to allow for additional review.

5a. I was surprised to learn that the ad was live for so long. Especially with clicks, it would seem like this should have been noticed by someone internally.

Due to the low search volume of the Adwords account, the employee reviewed bids (not keywords) to review which bids to optimize to gain impressions, but did not focus on reviewing adwords again as he perceived all those as already being approved.

6. Is it possible for a CCEC staffer to have access and training for Adwords. We haveaccess to Hootsuite for our social posts, so we can see what is scheduled to runand when. Can we do something similar where our team can see the final,approved ads? Is there a better way that CCEC can be involved in this process?

Yes, we can allow for view access for the CCEC Adwords campaigns going forward.

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7. Please provide a list of all RIESTER employees that perform work on the CCECaccount. We would like an updated list if/whenever this may change.

Mirja Riester - Chief Strategic Officer Ryan Wheelock - Account Manager/Project Manager Talei Hornback - Strategic Planner

Christina Borrego - Executive Director Public Relations and Social Communications Hayley Shanks - Social Media

Sam Dubose - Chief Financial Officer Melissa Defio - Ap & Billing Manager

Aaron Smitthipong - Digital Director Aaron Cain - Digital Art Director Jason Newlin - Manager of Front End Development Mike Lehnhardt - Senior Digital Designer Carlos Tirado - Senior Back End Developer Andrew Enzweiler - Motion Designer Greg Trotter - Senior Digital Designer Angel Jimenez - Digital Production Artist

David Kovacs - Associate Director of Content Strategy Bernadette Smith - Content & User Experience Strategist

Tom Ortega - Chief Creative Officer Ben Dveirin -- Associate Creative Director/Art Director Brooke West -- Senior Designer Debbie Zapatka -- Senior Art Director Christina Scherer -- Production Artist/Designer David Higgins -- Production Artist Vanessa Svancara - Production Artist Liz Rogers -- Copywriter Samara Byrne -- Content Producer Bill Robbins -- Print Production Manager

Kurt Krake-Executive Director of Analytics and Innovation Tricia Kashima--Media Director

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Kari Torrez-Associate Media Director Jeff Rahm-Media Supervisor Danielle Day-Media Planner/Buyer Danelle Benton-Smith - Programmatic Campaign Manager Anna Garza - Media Supervisor

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Mary R. O’Grady, 011434 Joseph N. Roth, 025725 Nathan T. Arrowsmith, 031165 OSBORN MALEDON, P.A. 2929 N. Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 (602) [email protected]@[email protected]

Attorneys for The Citizens Clean Elections Commission

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

Arizona Advocacy Network; Sen. David Bradley; Sen. Olivia Cajero-Bedford; Sen. Lupe Contreras; Sen. Andrea Dalessandro; Sen. Steve Farley; Sen. Katie Hobbs; Sen. Catherine Miranda; Sen. Martin Quezada; Sen. Andrew Sherwood; Rep. Richard C. Andrade; Rep. Lela Alston; Rep. Mark A. Cardenas; Rep. Ken Clark; Rep. Diego Espinoza; Rep. Charlene R. Fernandez; Rep. Randall Friese; Rep. Rosanna Gabaldon; Rep. Albert Hale; Rep. Stefanie Mach; Rep. Matthew Kopec; Rep. Juan Jose Mendez; Rep. Rebecca Rios; Rep. Macario Saldate; Rep. Ceci Velasquez; Rep. Bruce Wheeler; and Bricklayers and Allied Craftworkers Local Union #3 AZ-NM,

Plaintiffs,

vs.

The State of Arizona, a body politic; Michele Reagan, in her official capacity as Secretary of State; and The Citizens Clean Elections Commission; Governor's Regulatory Review Council,

Defendants.

No. CV2017-096705

CITIZENS CLEAN ELECTIONS COMMISSION’S RESPONSE TO STATE DEFENDANTS’ CROSS-

MOTION FOR SUMMARY JUDGMENT

(Assigned to the Honorable David K. Udall)

Defendant Citizens Clean Elections Commission hereby responds to the Cross-

Motion for Summary Judgment (the “Cross-Motion”) filed by Defendants State of

Arizona and Secretary of State Michele Reagan, and joined by the members of the

Chris DeRose, Clerk of Court*** Electronically Filed ***

K. Vega, Deputy7/2/2018 3:12:00 PM

Filing ID 9482689

ITEM V - CEC Response to State Defendants

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Governor’s Regulatory Review Council (“GRRC”) (collectively, the “State

Defendants”). The Cross-Motion is premised on a fundamental misunderstanding of the

Clean Elections Act and the principles of statutory construction. SB 1516 is plainly

inconsistent with the Act and to argue otherwise strains credulity. To the extent the

inconsistent portions of SB 1516 amend or supersede the Act, they violate the Voter

Protection Act (“VPA”) and are therefore invalid. Plaintiffs are entitled to judgment as

a matter of law that SB 1516 is unconstitutional to the extent it amends or supersedes

the Act. The Court should deny the Cross-Motion and grant Plaintiff’s motion.

I. The Act incorporates by reference certain portions of A.R.S. § 16-901 andsubsequent changes to § 16-901 do not affect the Act.

Arizona law is clear: when a statute “refers to and adopts the provisions of a

prior statute,” that statute “is not repealed or affected by the subsequent repeal of the

prior statute.” Dairy & Consumers Coop. Ass’n v. Ariz. Tax Comm’n, 74 Ariz. 35, 38

(1952); Maricopa Cnty. v. Osborn, 60 Ariz. 290, 296 (1943) (citation omitted). “In

such [a] case, the incorporated provisions, considered as a part of the second statute,

continue in force and are unaffected by the repeal.” Dairy & Consumers Coop., 74

Ariz. at 38; Osborn, 60 Ariz. at 296-97.1

Here, the Act expressly incorporates by reference certain definitions from A.R.S.

§ 16-901: the “terms ‘candidate’s campaign committee,’ ‘contribution,’ ‘expenditures,’

‘exploratory committee,’ ‘independent expenditure,’ ‘personal monies,’ ‘political

committee,’ and ‘statewide office’ are defined in § 16-901” (the “Incorporated

Definitions”). A.R.S. § 16-961(A). As a result, any subsequent amendments to § 16-

901 do not impact the Act. See Ariz. Op. Att’y Gen. No. I16-001 (“[W]hen a statute

adopts part or all of another statute, the adoption takes the statute as it exists at the time

1 Although the Legislature attempted to change this longstanding principle of statutory construction by enacting A.R.S. § 1-255 in 2015, that statute cannot be retroactively applied to the Act. See A.R.S. § 1-244 (“No statute is retroactive unless expressly declared therein.”). It is also worth noting that A.R.S. § 1-255 was not passed with a 3/4 majority of both houses of the Legislature. Interpretation of the Act, therefore, is governed by the principles of statutory construction set forth above.

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and does not include subsequent additions or modifications absent clear intent of the

drafters to the contrary.”) (quoting Ariz. Op. Att’y Gen. No. I78-171).

The Cross-Motion misunderstands and misapplies this longstanding principle of

statutory construction. The State Defendants claim (at 6) that it is Plaintiffs’ position

that “the VPA enshrines any statute merely referenced in [the Act] with VPA protection,

and that, as such, the legislature cannot modify any statute referenced in [the Act] unless

it complies with the VPA’s requirement.” This is not Plaintiffs’ position as the

Commission understands it, but it is wrong in any event. The Legislature is free to

change any statute referenced by or incorporated into the Act, but Arizona law is clear

that any changes to statutes incorporated by reference into the Act do not amend the

Act. See Dairy & Consumers Coop., 74 Ariz. at 38; Osborn, 60 Ariz. at 296-97; Ariz.

Op. Atty. Gen. No. I16-001. Put another way, the Legislature can certainly amend § 16-

901 or repeal it in its entirety. But those actions, without more, simply would not affect

the Incorporated Definitions. Accordingly, the Incorporated Definitions, as they existed

in 1998, remain in effect as part of the Act. There is, of course, no dispute that the Act

cannot be amended unless the Legislature complies with the VPA and that SB 1516 was

not passed with a three-fourths majority in either chamber of the Legislature.

Both the Cross-Motion (at 3-4) and GRRC’s joinder (at 2) reference a federal

district court case – Galassini v. Town of Fountain Hills – as a reason why SB 1516 was

necessary, arguing that “SB 1516 was designed in large part to remedy the vagueness in

§ 16-901” as identified in Galassini. No. CV 11-02097-PHX-JAT, 2013 WL 5445483,

at *19 (D. Ariz. Sept. 30, 2013). The purpose behind SB 1516 is not relevant to

whether SB 1516 amended the Act. The Incorporated Definitions are part of the Act

and may not be changed by the Legislature, regardless of the purpose, unless it complies

with the VPA. A federal court determination that a voter protected statute is

unconstitutional would not relieve the Legislature of its obligations under the VPA.2

2 Moreover, Defendants’ assertions that the purpose of SB 1516 was to correct a purported issue with § 16-901 created by Gallasini is disingenuous. In a 2015 press

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II. The Brain case does not control here.

Next, the Cross-Motion (at 5-9) relies on a misguided analogy to Arizona

Citizens Clean Elections Commission v. Brain, 234 Ariz. 322 (2014) to argue that the

Incorporated Definitions were not, in fact, incorporated into the Act. Brain has no

purchase here. There, the Arizona Supreme Court considered a challenge to the

constitutionality of HB 2593, which amended campaign contribution limits found in

A.R.S. § 16-905 and referenced in § 16-941. Brain, 234 Ariz. at 324 ¶ 5. The Court

ultimately concluded that § 16-941(B) was “most reasonably interpreted as establishing

a formula” for campaign contribution limits rather than fixing campaign contribution

limits. Id. at 325 ¶¶ 13-14. As support for this conclusion, the Court noted that:

(1) § 16-941(B) used a percentage, which “is characteristic of a formula,” (2) “the

voters fixed monetary amounts in other parts of § 16-941 and elsewhere in the” Act,

(3) “voters treated the § 16-941(B) limits differently from fixed amount limits specified

elsewhere in the Act,” (4) interpreting § 16-941(B) as fixing contribution limits would

widen the gap between contribution limits for participating and non-participating

candidates, which was likely contrary to voters’ intent, (5) fixed contribution limits

would create “a needlessly confusing system,” and (6) the ballot and publicity materials

did not contain language informing voters that the Act would permanently fix

contribution limits. Id. 325-27 ¶¶ 15-21.

Brain is distinguishable here. With the Incorporated Definitions, the Act

imported fixed, defined terms, not a formula that fluctuates. The Incorporated

Definitions – in their fixed form – are key terms used throughout the Act. See, e.g.,

A.R.S. § 16-941(A), (D) (contribution, expenditure, independent expenditure); § 16-

942(A) (contribution and expenditure); § 16-958(A), (C) (independent expenditure and

release, the Secretary asserted that a different piece of legislation was “in response to a federal court ruling that Arizona’s definition of a political committee was ‘vague, overbroad and consequently unconstitutional in violation of the First Amendment.’” Press Release, Ariz. Sec’y of State, (April 15, 2015), https://azsos.gov/about-office/media-center/press-releases/291 (referencing Gallasini).

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candidate’s campaign committee). If any change to § 16-901 had the effect of

amending the Act, the Legislature could change the Incorporated Definitions in such a

way as to fundamentally undermine the purpose of the Commission and the Act without

actually amending the Act. The voters did not intend to create a campaign finance

system that could be manipulated and changed at the whim of those in power. See

A.R.S. § 16-940(A) (noting that the purpose of the Act is to “improve the integrity of

Arizona state government by diminishing the influence of special-interest money[.]”).

The State Defendants (at 8) make much of the fact that the VPA and the Act

were passed at the same time and if the VPA had failed, the Legislature would be able

to change the Act whenever it wanted. But even if the VPA did not exist, the

Legislature still could not change the Incorporated Definitions simply by amending

§ 16-901 – it would need to pass legislation explicitly amending the Act to make

changes to § 16-901 effective as to the Act. See Ariz. Op. Att’y Gen. No. I78-171

(noting that it was “the responsibility of future sessions of the Arizona Legislature to

decide whether” changes to a federal statute that had been incorporated into an Arizona

statute “should be made applicable” to the Arizona statute). Accordingly, the

comparison to the formula at issue in Brain fails. The Incorporated Definitions may

only be amended or repealed if the Legislature complies with the VPA. It failed to do

so here and the Cross-Motion should therefore be denied.

III. SB 1516 is plainly inconsistent with the Act.

Although it is clear that the Legislature cannot (and did not) change the

Incorporated Definitions without complying with the VPA, any effort to get enough

votes to do so would fail because SB 1516 is inconsistent with the Incorporated

Definitions because it purported to repeal and replace all of the definitions in § 16-901,

including the Incorporated Definitions. Yet, the State Defendants spend a significant

portion of their brief (at 10-14) arguing that SB 1516 does not conflict with the Act.

The Court should reject this argument. To the extent that SB 1516 purports to allow

candidates to receive contributions or make expenditures that would not be permitted

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under the Incorporated Definitions and the Act, SB 1516 is inconsistent with the Act

and impermissibly attempts to amend the Act.

Of course, the Legislature cannot amend or repeal portions of the Act without

complying with the VPA, which it did not do here. The Court should therefore find

SB 1516 unconstitutional to the extent it amends or repeals portions of the Act.

IV. SB 1516 cannot diminish the Commission’s authority to enforce the Act orreporting requirements found in title 16, chapter 6.

The State Defendants next argue (at 14-17) that SB 1516 does not remove any of

the Commission’s enforcement authority because the Commission “does not enjoy (and

has never enjoyed) the broad enforcement authority Plaintiffs contend.” To support

their argument, however, the State Defendants rely upon a contorted reading of the Act.

The Act is not only title 16, chapter 6, article 2 – the Act also amended article 1,

referred to article 1, and incorporated by reference portions of article 1. The Act

specifically gives the Commission authority to enforce any reporting requirement

imposed by title 16, chapter 6, including reporting requirements in article 1: A.R.S.

§ 16-942(B) prescribes civil penalties for violations “by or on behalf of any candidate of

any reporting requirement imposed by this chapter[.]” (emphasis added) The Act then

gives the Commission authority to adjudicate suspected violations by “a person [who]

has violated any provision of this article,” and to assess “civil penalt[ies] in accordance

with § 16-942[.]” A.R.S. § 16-957(A)-(B); see also A.R.S. §§ 16-941(C)(2) (requiring

all candidates to comply with election and campaign finance laws unless they conflict

with the Act); -947(B)(2) (requiring candidates applying for Clean Elections funding to

certify their compliance with campaign finance requirements in article 1). Accordingly,

the Act vests the Commission with enforcement authority over violations of reporting

requirements imposed by title 16, chapter 6 and to impose civil penalties.

The State Defendants argue that § 16-942(B) only allows the Commission to

assess penalties against candidates, even though nothing in § 16-942(B) says that. The

plain language of § 16-942(B) imposes a “civil penalty for a violation by or on behalf of

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any candidate of any reporting requirement imposed by this chapter[.]” The phrase “by

or on behalf of any candidate” does not limit such penalties to candidates only – it

means a violation of reporting requirements by a candidate or by a non-candidate

making an expenditure benefitting a candidate will trigger a civil penalty under the Act.

Id. The State Defendants also point to the last sentence of § 16-942(B) which states that

a “candidate and the candidate’s campaign account shall be jointly and severally

responsible for any penalty imposed[.]” Similarly, this does not limit the reach of § 16-

942(B) to candidates – it simply means that if a candidate commits a violation of a

reporting requirement, the candidate and his or her campaign account will be jointly and

severally liable for the civil penalty imposed by the Act.

The State Defendants (at 16) contend that a “clear delineation of enforcement

authority” existed before SB 1516, with the Secretary purportedly bearing sole

responsibility for enforcing article 1 and the Commission limited to enforcing article 2.

As set forth above, this is inaccurate based on the plain language of the Act. If such a

delineation were clear, then SB 1516’s amendments to § 16-938 providing that the

Secretary is the “sole public officer” authorized to investigate alleged violations of

article 1 would have no purpose. The State Defendants also argue (at 15) that prior to

the enactment of SB 1516, amendments to § 16-905 already provided that alleged

violations of article 1 were solely within the Secretary’s jurisdiction. This argument

fundamentally misses the point of this lawsuit, which is that the Legislature cannot

repeal, amend, or alter the scope of the Commission’s authority without complying with

the VPA. To the extent prior amendments to § 16-905 sought to repeal, amend, or alter

the scope of the Commission’s authority, those amendments were also ineffective and

unconstitutional.

Importantly, even indirect amendments to a voter-approved law are not permitted

under the VPA. The Arizona Supreme Court has held that the Legislature effectively

amended a voter-approved law when it passed a law inconsistent with the express terms

of the voter-approved law. See State v. Maestas, --- Ariz. ---, 417 P.3d 774, 778 ¶¶ 15-

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16 (Ariz. May 23, 2018) (holding that the Legislature had impermissibly attempted to

amend the Arizona Medical Marijuana Act by enacting a statute purporting to

criminalize marijuana possession that was authorized under that law). Even though the

amendments to § 16-938 do not directly amend the Act, they are still unconstitutional to

the extent they conflict with the Act.

The Legislature cannot interfere with or alter the authority of the Commission to

enforce the Act, including any reporting requirement imposed by title 16, chapter 6.

Because SB 1516 is an impermissible attempt to do just that, the Court should deny the

Cross-Motion and grant Plaintiffs’ motion.3

V. Conclusion.

The Cross-Motion grossly misstates the issues in this case and should be denied.

The Incorporated Definitions are as much a part of the Act as if they were fully

reprinted in § 16-961 and cannot be amended or repealed by the Legislature unless the

requirements of the VPA are fulfilled. Additionally, the Legislature cannot diminish the

authority of the Commission or repeal, amend, or supersede the Act without complying

with the VPA. There is no dispute that the VPA’s requirements were not met here. The

Court should deny the Cross- Motion and enter judgment in favor of Plaintiffs.

DATED this 2nd day of July, 2018. OSBORN MALEDON, P.A.

By /s/ Nathan T. Arrowsmith Mary R. O’Grady Joseph N. Roth Nathan T. Arrowsmith 2929 N. Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Defendant The Citizens Clean Elections Commission

3 The Commission’s position with respect to Plaintiffs’ Article VII § 16 claim is set forth in the Commission’s Response to Plaintiffs’ Motion for Summary Judgment (at 10).

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THE FOREGOING has been electronically filed and e-delivered this 2nd day of July, 2018, to:

The Honorable David K. Udall Maricopa County Superior Court 222 E. Javelina, SE-2E Mesa, AZ 85210

COPY of the foregoing e-mailed and mailed this 2nd day of July, 2018, to:

Israel G. Torres James E. Barton II Saman J. Golestan TORRES LAW GROUP, PLLC 2239 W. Baseline Road Tempe, AZ 85283 [email protected] Attorneys for Plaintiffs

Timothy Berg Emily Ward Dena Sanders FENNEMORE CRAIG, P.C. 2394 E. Camelback Road, Suite 600 Phoenix, AZ 85016 [email protected] [email protected] [email protected] Attorneys for Defendants State of Arizona and Secretary of State Michele Reagan

Timothy A. La Sota TIMOTHY A LA SOTA, PLC 2198 E. Camelback Road, Suite 305 Phoenix, AZ 85016 [email protected] Attorneys for Defendant Governor’s Regulatory Review Council

/s/ Debra Huss7649411

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Timothy A. La Sota, SBN 020539 TIMOTHY A. LA SOTA, PLC 2198 EAST CAMELBACK ROAD, SUITE 305 PHOENIX, ARIZONA 85016 TELEPHONE: (602) 515-2649 [email protected] Attorney for Defendant Governor’s Regulatory Review Council Members

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

ARIZONA ADVOCACY NETWORK; et al.;

Plaintiffs, vs.

THE STATE OF ARIZONA, a body politic; MICHELE REAGAN, in her official capacity as Secretary of State; THE CITIZENS CLEAN ELECTIONS COMMISSION; and NICOLE ONG COLYER, BRENDA BURNS, JOHN SUNDT, CONNIE WILHELM, FRANK THORWALD, STEVE VOELLER, AND CHRISTOPHER AMES, each in their official capacity as Governor’s Regulatory Review Council members;

Defendants.

No. CV2017-096705

GRRC DEFENDANTS REPLY TO PLAINTIFFS’ RESPONSE TO CROSS-MOTION FOR SUMMARY JUDGMENT

(assigned to the Honorable David Udall)

Defendants NICOLE ONG COLYER, BRENDA BURNS, JOHN SUNDT,

CONNIE WILHELM, FRANK THORWALD, STEVE VOELLER, AND

CHRISTOPHER AMES (collectively, the “GRRC Defendants”), each in their official

capacity as Governor’s Regulatory Review Council members, join in the Reply to Cross-

Motion for Summary Judgment submitted by Defendants State of Arizona and Michele

Reagan.

ITEM V - GRRC Reply to Plaintiffs

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In addition, the GRRC Defendants would like to make the following points.

I. GRRC’S REPEAL OF THE CLEAN ELECTIONS COMMISSION’S

RULES DID NOT VIOLATE THE VOTER PROTECTION ACT

Plaintiffs start their rebuttal on this point by erring on the factual background

behind the expiration of the Clean Elections Commission’s rules, and GRRC’s actions

with regard to that. But as Plaintiffs state, the motivation of GRRC is not terribly

important. The real issue is whether GRRC’s actions were legal1, so the GRRC

Defendants will cover that first.

It is ironic to see the Arizona Advocacy Network, the self-described “protector”2

of the Clean Elections Act, attempt to eviscerate an important provision of the Act. The

Clean Elections Act is very specific in terms of what rulemaking authority is exempted

from the general rulemaking process applicable to most rulemaking agencies in Arizona.

See A.R.S. §§ 41-1021 through 41-1038. The Clean Elections Act3 exempts Commission

1 Plaintiffs have never been entirely clear on what, exactly, GRRC’s role in this lawsuit is, beyond somewhat vague claims that Senate Bill 1516 somehow had something to do with GRRC’s claimed illegal actions. This is not even accurate from a foundational standpoint, but it is true that there is an ongoing dispute between GRRC and the Clean Elections Commission regarding each agency’s respective powers. Since Plaintiffs seem to be (cryptically) invoking that dispute, GRRC will state the basis for its jurisdiction. 2 “Arizona Advocacy Network has taken on the responsibility of protecting the CEA in the absence of the Clean Elections Institute.” Plaintiffs’ First Amended Verified Complaint, p. 8, ¶ 29. 3 Because the main issue involves questions related to the objectives of the electorate in passing the Clean Elections Act, in this brief GRRC refers to the language of the Clean Elections Act as passed by the voters of Arizona in 1998. (See Proposition 200, 1998 General Election, http://apps.azsos.gov/election/1998/Info/PubPamphlet/prop200.pdf.) The Act has been amended since it was passed. Though GRRC Defendants point to some of these changes in its argument, the changes to the Act do not have a fundamental effect on the issues in this case that

http://apps.azsos.gov/election/1998/Info/PubPamphlet/prop200.pdf

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rules from the general rule making provisions: “Commission rulemaking is exempt from

Title 41, Article 3, Chapter 6…” A.R.S. 16-956(D)(emphasis added)4. Instead, the Clean

Elections Act spells out a different, more streamlined process for the Commission to

follow in adopting rules:

…the Commission shall submit the rules for publication and the secretary of state shall publish the rules in the Arizona Administrative Register. The commission shall propose and adopt rules in public meetings, with at least sixty days allowed for interested parties to comment after the rules are proposed.

Id. While the Commission is exempt from the rulemaking procedures set forth in Title

41, Chapter 6, Article 3, the Clean Elections Act does not exempt Commission rules from

Title 41, Chapter 6, Article 5.

The duties performed by GRRC are codified in Title 41, Chapter 6, Article 5.

Specifically, A.R.S. § 41-1056 requires for the five-year review for all rules, and this

statute forms the basis of the dispute between GRRC and the Clean Elections Commission,

and the claimed illegal actions by GRRC. A.R.S. § 41-1056(A)(“At least once every five

years, each agency shall review all of its rules…”) A.R.S. § 41-1056(G) further states

that “[t]he agency shall notify the council of an amendment or repeal of a rule for which

the council has set an expiration date under subsection E of this section. If the agency does

not amend or repeal the rule by the date specified by the council under subsection E of

this section or the extended date under subsection F of this section, the rule automatically

expires.” These are statutory duties, actions that GRRC is required by law to take.

involve GRRC. That is, as far as GRRC’s role is concerned, the Act is substantively the same now as it was when passed. 4 This statute is now found at A.R.S. § 16-956(C).

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Expiration by default of a rule that GRRC had ordered be repealed is exactly what

happened here. GRRC required the Clean Elections Commission to repeal Rule R2-20-

109(F)(2)-(12) and (G), which the Commission subsequently split up between Rules R2-

20-109 and R2-20-1115, the Clean Elections Commission did not do so by the expiration

date, and hence those rules have automatically expired and are no longer valid. The Clean

Elections Act did not take away GRRC’s power to conduct this five-year review. And in

fact, the Clean Elections Act’s provision exempting certain rulemaking functions, but not

exempting others (such as the review process outlined above), is strong evidence that the

voters very much intended that GRRC continue to perform this function. Pima County v.

Heinfeld, 654 P.2d 281, 282, 134 Ariz. 133, 134 (1982) (“A well established rule of

statutory construction provides that the expression of one or more items of a class indicates

an intent to exclude all items of the same class which are not expressed.”)

In addition, GRRC’s five-year review function, embodied in A.R.S. § 41-1056, has

been in Article 5 of Chapter 6, Title 41 since before the Clean Elections Act was passed.

See A.R.S. § 41-1051 et seq., Credits and historical notes. In interpreting initiatives passed

by the voters, Arizona courts presume that voters understand the current state of the law.

Hall v. Elected Officials' Retirement Plan, 383 P.3d 1107, 1128, 241 Ariz. 33, 54 (2016)

(“We presume that the legislature (in this instance, the measure's drafters and the

electorate) knows the prior law…”) If the intent was to exempt the Commission from all

statutes related to rulemaking and rule review, that could have easily been accomplished.

The Clean Elections Act’s manner of exempting the Commission’s rule making

powers, in conjunction with the absence of an exemption from GRRC’s rule review

5 The mechanics of this are explained in greater detail in Section II below.

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function, leads to the inescapable conclusion that GRRC’s rule review function remains

valid and intact. GRRC has a statutory obligation to review all rules, including those

passed by the Clean Elections Commission. It discharged that duty lawfully. If the

Commission feels that the Clean Elections Act should be changed, they should simply

attempt to amend the Act following the rules of the Voter Protection Act that they

champion when it suits them.

II. PLAINTIFFS CONTINUE TO CLING TO THE ERRONEOUS

ASSERTION THAT THERE IS SOME CORRELATION BETWEEN THE

PASSAGE OF SENATE BILL 1516 AND THE EXPIRATON OF COMMISSION

RULES R2-20-109 AND R2-20-111

Though it is ultimately less important than the main issue briefed above, the record

needs to be set straight about the lack of a relationship between GRRC’s vote to require

the repeal of R2-20-109(F)(2)-(12) and (G) and the passage of Senate Bill 1516.

To begin with, the reason that the minutes of February 2, 2016 only list R2-20-109

is because after the February 2, 2016 meeting, the Clean Elections Commission

reorganized what had been R2-20-109 into R2-20-109 and R2-20-111 in an ineffective

attempt to reimplement this rule. That is why GRRC’s position is that both of these rules

have automatically expired. The Clean Elections Commission cannot avoid the law by

simply giving a set-to-expire rule a new number.

In addition, Plaintiffs’ claim that “Defendant GRRC members had actual or

constructive knowledge of SB 1516 before it was formally introduced or passed in the

legislature because of the ten month public drafting, notice and advice process Defendants

admit happened.” [Response, p. 13, lines 14-17]. Plaintiffs cite no legal support for their

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proposition that it should just be assumed that GRRC has knowledge of just about

anything that happens or might happen at the Legislature. But their argument also ignores

the fundamentals of what GRRC does. It is GRRC’s legal duty to review all rules of

Arizona agencies, which cover wide-ranging areas including public health and safety,

transportation, and the environment. GRRC has no special interest in campaign finance

related bills such as Senate Bill 1516. The backhanded compliment notwithstanding,

GRRC members are not all knowing.

III. PLAINTIFFS’ ENDORSEMENT OF THE ABILITY OF THE

LEGISLATURE TO FIX CONSTITUTIONAL PROBLEMS WITH THE CLEAN

ELECTIONS ACT WHEN IT SUITS THEM IS A TACIT ADMISSION THAT

PRESERVING THE LEGISLATURE’S ABILITY TO DO THIS GOING

FORWARD IS SOMETHING THIS COURT SHOULD CONSIDER

Curiously, Plaintiffs criticize the GRRC Defendants argument that this Court

should consider the “legislative straight jacket” that the Plaintiffs ask this Court to impose

on the Legislature. Specifically, they call this a “speculative non-sequitur.” [Response,

p. 10, line 6.] And yet, elsewhere in their brief, they praise the Legislature’s 2012 repeal

of the unconstitutional matching funds provision as “further[ing] the purpose [of the Clean

Elections Act] because the people had intended to pass a working constitutional law…”

[Response, p. 12, lines 11-12.]

Plaintiffs apparently agree that the Legislature has already had to act to preserve

the constitutional aspects of the Clean Elections Act. It is true that the Legislature was

able to put together a three-quarter vote in that circumstance, but such bipartisan

agreement on anything of importance is rare, and even less so on controversial campaign

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finance matters. The bottom line is that this Court should consider whether the voters of

this state truly intended the position advocated by the Plaintiffs, which could ultimately

doom the parts of the Clean Elections Act that are still valid law by making it politically

and practically impossible to change it.

IV. CONCLUSION

For the foregoing reason, the GRRC Defendants respectfully request that this Court

deny Plaintiffs’ Motion for Summary Judgment and grant the Defendants’ Cross-Motions

for Summary Judgment.

RESPECTFULLY SUBMITTED this 17th day of July, 2018.

TIMOTHY A. LA SOTA, PLC

By: /s/ Timothy A. La Sota Timothy A. La Sota 2198 East Camelback Road, Suite 305 Phoenix, Arizona 85016 [email protected] Attorney for Defendant members of the

Governor’s Regulatory Review Council

I hereby certify that on July 17, 2018, I caused the foregoing document to was filed with the Maricopa County Superior Court Clerk via the Turbo Court E-file system.

I hereby certify that on July 17, 2018 the foregoing was sent via first class U.S. mail and email to:

mailto:[email protected]

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Israel G. Torres James E. Barton II Saman J. Golestan TORRES LAW GROUP, PLLC 2239 West Baseline Road Tempe, Arizona 85283 [email protected] Attorneys for Plaintiffs Timothy Berg FENNERMORE CRAIG 2394 E Camelback Rd. Suite 600 Phoenix, AZ 85016 [email protected] Attorneys for Defendant State of Arizona and Michele Reagan Mary O’Grady OSBORN MALEDON 2929 North Central Avenue Twenty-First Floor Phoenix, AZ 85012-2793 [email protected] Attorneys for Defendant Citizens Clean Elections Commission /s/ Timothy A. La Sota




FENNEMORE CRAIG, P.C.

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FENNEMORE CRAIG, P.C.Timothy Berg (No. 004170)Janice Proctor-Murphy (No. 013078)Emily Ward (No. 029963)2394 East Camelback Road, Suite 600Phoenix, AZ 85016-3429Telephone: (602) 916-5000Email: [email protected]: [email protected]: [email protected]

Attorneys for DefendantsState of Arizona andSecretary of State Michele Reagan


MARICOPA COUNTY

ARIZONA ADVOCACY NETWORK;et al.,

Plaintiffs,

v.

THE STATE OF ARIZONA, a bodypolitic; MICHELE REAGAN, in herofficial capacity as Secretary of State; THECITIZENS CLEAN ELECTIONSCOMMISSION; and NICOLE ONGCOLYER, BRENDA BURNS, JOHNSUNDT, CONNIE WILHELM, FRANKTHORWALD, STEVE VOELLER, andCHRISTOPHER AMES, each in theirofficial capacity as Governor’s RegulatoryReview Council members,

Defendants.

No. CV2017-096705

DEFENDANTS STATE OFARIZONA’S AND SECRETARY OFSTATE MICHELE REAGAN’SREPLY IN SUPPORT OFCROSS-MOTION FOR SUMMARYJUDGMENT

(Assigned to the Hon. Janice Crawford)

Oral Argument Requested

Plaintiffs and the Commission set forth conflicting and impractical constructions of

how the VPA should be interpreted. Plaintiffs contend that any statute merely referenced

in a voter-passed statute is enshrined with VPA protection. The Commission, on the other

hand, asserts that voter-passed statutes should be interpreted with the referenced statutes

as the referenced statutes existed when the voter-passed statute became law. Instead of

these unreasonable interpretations, the Court should focus on what the VPA’s text

ITEM V - SOS Reply ISO Cross Motion


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commands: only when a statute amends, repeals, or supersedes a voter-passed statute is

the VPA implicated. Neither Plaintiffs nor the Commission has shown that S.B. 1516

amends, repeals, or supersedes any statute in Article 2. As such, the Court should grant

summary judgment in favor of Defendants the State of Arizona (the “State”) and

Secretary of State Michele Reagan (the “Secretary”).

I. S.B. 1516 DOES NOT VIOLATE THE VPA BECAUSE IT DOES NOTAMEND ARTICLE 2.

Both Plaintiffs and the Commission advance multiple (and sometimes conflicting)

theories in an effort to substantiate their claim that S.B. 1516 violates the VPA. As

Defendants explained in their Response and Cross-Motion, whether S.B. 1516 violates the

VPA turns upon whether S.B. 1516 amends, supersedes, or repeals a statute in Article 2.

A. Plaintiffs’ and the Commission’s contrary constructions of the VPA aredivorced from the VPA’s text and would be impractically difficult tounderstand.

Plaintiffs contend that any statute that a voter-passed statute references is shielded

from any change indefinitely unless the proposed change receives three-fourths vote of the

legislature and furthers the voter-passed statute’s purpose under the VPA. As applied

here, because portions of S.B. 1516 are referenced in Article 2, Plaintiffs move this Court

to declare those portions of S.B. 1516 unconstitutional both as to Article 1 and Article 2

and enjoin their enforcement.

In contrast, the Commission maintains that the legislature may change a statute that

a voter-passed statute references, but such a change is unconstitutional as applied to the

voter-passed statute. Instead, the prior, unchanged version of the referenced statute

remains in effect for purposes of interpreting the voter-passed statute. Pursuant to that

theory, the Commission argues that S.B. 1516’s changes would apply to Article 1, but not

Article 2. To the extent Article 2 referenced a definition in Article 1, the applicable

definition would be that utilized in 1998 when the voters passed Article 2. Both

Plaintiffs’ and the Commission’s interpretations are unmoored from the actual text of the

VPA and are also unworkable in practice.


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Under Plaintiffs’ VPA theory, the VPA enshrines any statute merely referenced in

a voter-passed statute from any amendment unless such amendment receives three-fourths

majority vote and furthers the purpose of the voter-passed statute. However, the VPA was

designed to protect voter-passed statutes—not the additional statutes merely referenced

therein. To bestow the VPA with the ability to immunize from any amendment other

statutes that voters did not pass stretches the VPA beyond its intended design. See

Analysis by Legislative Counsel, Publicity Pamphlet for Proposition 105 (VPA), available

at http://apps.azsos.gov/election/1998/Info/PubPamphlet/Prop105.html (explaining that

the VPA “[p]rohibits the State Legislature from ever repealing the approved measure or

from amending an approved measure except as provided below” (emphases added)). The

VPA says nothing about constraining the legislature’s power to amend statutes only

incorporated by reference into a voter-passed statute.

The Commission’s VPA theory proposes an unworkable set of circumstances

wherein readers of Article 2 must somehow divine that A.R.S. § 16-961’s references to

the definitions in A.R.S. § 16-901 actually refer to the definitions as they existed in the

1998 version of A.R.S. § 16-901—not the current definitions. See Ariz. Citizens Clean

Elections Comm’n v. Brain, 234 Ariz. 322, 327, ¶ 20 (2014) (counseling against an

interpretation that would create a “needlessly confusing system”). The same term used in

two different articles of Chapter 6 would have different meanings, but that difference

would not be apparent from the face of the statutes. The Commission fails to explain how

this could work as a practical matter, making its construction of the VPA of questionable

value.

Moreover, the Commission does not adhere to its own construction of the VPA.

The Commission’s rules do not refer to the definitions in A.R.S. § 16-901 as they were in

1998. By way of example, even though the term “expenditure” is included in A.R.S.

§ 16-961’s list of terms referencing the definition of “expenditure” in A.R.S. § 16-901, the

Commission uses the current definition of “expenditure” under S.B. 1516—not the

definition in 1998. Rule R2-20-104 provides, “Spending the money lawfully prior to


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April 30 of an election year in a way that does not constitute a direct campaign purpose

and does not meet the definition of ‘expenditure’ under A.R.S. § 16-901(24).” The

definition of “expenditure” in 1998, however, was in A.R.S. § 16-901(8)—not A.R.S.

§ 16-901(24). See 1997 Ariz. Sess. Laws ch. 5, § 37 (2nd Spec. Sess.). Ironically, the

definition of “expenditure” did not move to A.R.S. § 16-901(24) until S.B. 1516.

This Court should not adopt either Plaintiffs’ or the Commission’s overly

expansive construction of the VPA in determining the fate of S.B. 1516. Instead, the

Court should examine simply whether S.B. 1516 amends, supersedes, or repeals a statute

in Article 2.

B. S.B. 1516 Does Not Amend the Definitions in § 16-961.

1. Arizona has abrogated the specific reference canon.

Both Plaintiffs’ and the Commission’s theories of S.B. 1516 “indirectly amending”

A.R.S. § 16-961 are premised on this Court following their reading of the incorporation-

by-reference canon of construction. For support, Plaintiffs and the Commission

predominantly rely on Maricopa Cty v. Osborn, 60 Ariz. 290 (1943) and Dairy and

Consumers Co-Op. Ass’n v. Ariz. Tax Comm’n, 74 Ariz. 35 (1952)1 to support their theory

that S.B. 1516 cannot amend definitions incorporated by reference into § 16-961.

Arizona Citizens Clean Elections Commission v. Brain undercuts the specific

reference canon. 234 Ariz. at 328, ¶ 27. Although Brain did not mention Osborn or

Dairy by name, it counseled against applying the specific reference canon in Nelson

Machinery Co. v. Yavapai Cty., 108 Ariz. 8, 11 (1971), which cited Osborn and Dairy.

234 Ariz. at 328, ¶ 27. Brain even went so far as to explicitly “recogniz[e] the canon’s

1 Osborn and Dairy involved quite different situations than the one before this Court.In both cases, the issue was not whether an amendment to a prior definitional statute thatwas later incorporated by reference into a subsequent statute would be interpretedpursuant to the amended definitions. Rather, the Osborn and Dairy courts addressedwhether the repeal of a statute incorporated into another statute meant that the latterstatute could be considered repealed as well. E.g., Dairy, 74 Ariz. at 37 (consideringwhether the repeal of A.R.S. § 73-1303(a), which was adopted by reference in A.R.S.§ 73-1306, was indicative of a legislative intent to absolve the plaintiff from paying thetax under A.R.S. § 73-1306). Here, however, no party contends that S.B. 1516’s changesto the definitions in § 16-901 would somehow nullify any statute in Article 2 referencingthose definitions.


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limitations” and noted that the canon “does not help ascertain the voters’ intent.” Id.; see

also id. at 329–30, ¶ 35 (advocating for “disclaim[ing] the specific reference canon

entirely” (Bales, C.J., dissenting)). To say that “Arizona law is clear” that the definitions

incorporated in § 16-961 must be the 1998 definitions as the Commission argues ignores

the obvious directives of Brain.

In addition to rejecting the specific reference canon, Brain signaled approval of

other legislative enactments of specific rules of construction holding that a reference to

any portion of a statute incorporates all revisions or amendments of that statute. Id. at

328, ¶ 27, n.4 (citing Colo. Rev. Stat. Ann. § 2-4-209 (West 2014) (“A reference to any

portion of a statute applies to all reenactments, revisions, or amendments thereof.”) and

Cal. Gov’t Code § 9 (West 2014) (“Whenever reference is made to any portion of this

code or any other law of this State, the reference applies to all amendments and additions

now or hereafter made.”)). Indeed, Brain’s suggestion of such a legislative canon of

construction was acted upon by the Arizona Legislature in passing A.R.S. § 1-255 just a

year after Brain in 2015. A.R.S. § 1-255 is virtually identical to Colo. Rev. Stat. Ann.

§ 2-4-209 and Cal. Gov’t Code § 9, instructing that “[a] reference to a statute or portion of

a statute applies to all reenactments, revisions or amendments of the statute or portion of

the statute.” A.R.S. § 1-255 provides this Court with the applicable principle of statutory

construction to apply herein: S.B. 1516’s amendments to the definitions in § 16-901 apply

to A.R.S. § 16-961.

The Commission argues that A.R.S. § 1-255 cannot be retroactively applied to any

provision in Article 2. See Commission’s Response to Defendants’ Cross-Motion for

Summary Judgment (“Comm’n Resp.”) at 2 n.1. A.R.S. § 1-255 is not being

“retroactively applied” because it does not contain any substantive rights; it is a

procedural canon of construction that would presently apply to this Court’s construction

of S.B. 1516. See State v. Aguilar, 218 Ariz. 25, 32, ¶ 25 (App. 2008) (“[A] statute is not

impermissibly retroactive if it is merely procedural and does not affect an earlier

established substantive right.”).


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To the extent the Commission is arguing that A.R.S. § 1-255 must be ignored by

this Court because it infringes on the VPA, see Comm’n Resp. at 2 n.1, such an argument

grossly overinflates the scope of the VPA—allowing it to swallow any Arizona law

enacted after it was passed in 1998. The VPA is not a rule of universal application; it only

prevents the legislature from amending, superseding, or repealing a voter-passed statute

unless such legislation receives three-fourths majority vote of the legislature and furthers

the purpose of the voter-passed law.

2. Brain establishes that S.B. 1516 does not amend § 16-961.

In an attempt to distinguish Brain, Plaintiffs and the Commission contend that

Brain does not apply because Article 2 (A.R.S. § 16-961) “imported fixed, defined terms,

not a formula that fluctuates.” Comm’n Resp. at 4; Plaintiffs’ Response to Defendants’

Cross-Motion for Summary Judgment (“Pls.’ Resp.”) at 11 (attempting to distinguish

Brain by arguing that “[h]ere, there is no issue of a numerical input into a formula”).

Although Brain described § 16-941(B) as a “formula,” the issue before the Court actually

involved a legislative change to a definitional-type provision incorporated in a voter-

passed statute. Specifically, the Court addressed whether the legislature could amend then

existing § 16-905’s campaign contribution limits when the voter-passed § 16-941(B)

referenced the “limits specified in § 16-905.” Contrary to Plaintiffs’ and the

Commission’s argument, the text of § 16-941(B) did not specify a “formula.” The court

in Brain only characterized § 16-941(B) as a “formula” in determining whether to

interpret that section as providing “fixed limits” or a “formula.” 234 Ariz. at 325, ¶ 13

(“That subsection can be reasonably read as either providing a formula for calculating

campaign contribution limits for nonparticipating candidates, applicable as the amounts

prescribed in § 16–905 change (as Intervenors argue and the superior court determined) or

fixing those limits at eighty percent of the amounts listed in § 16–905 at the time of the

1998 election (as the Commission argues and the court of appeals held).”). The text of

§ 16-941(B) contains a definitional limit in § 16-905 just as § 16-961 does with the

definitions in § 16-901. The issue in Brain is nearly identical to the issue before this


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Court.

The Commission also argues that Brain is somehow different because § 16-961’s

incorporated definitions are “key terms used throughout the Act.” Comm’n Resp. at 4–5.

However, § 16-941(B)’s incorporation of campaign contribution limits in § 16-905 was

just as much (if not more) of a “key term” as the definitions in § 16-901 incorporated into

§ 16-961.

3. S.B. 1516’s definitions can be read harmoniously with § 16-961.

As explained by Cave Creek Unified Sch. Dist. v. Ducey, if conflicting statutes can

be “harmonized to give each effect and meaning,” there is no amendment or repeal for

purposes of the VPA. 233 Ariz. 1, 7, ¶ 8 (2013). The Commission summarily contends

that S.B. 1516 is “plainly inconsistent” with Article 2 simply because § 16-901’s

definitions changed. Comm’n Resp. at 5–6. Notably, the Commission does not actually

articulate how S.B. 1516 is inconsistent with Article 2. Plaintiffs’ and the Commission’s

only argument is simply that the definitions in § 16-901 are now different so there “must

be” a conflict with Article 2 anytime those definitions are referenced in Article 2. Brain

forecloses this argument.

In response to Plaintiffs’ Motion, the Commission contends that at least one of S.B.

1516’s definitions as applied to Article 2 would “fundamentally undermine” Article 2.

See Commission’s Response to Plaintiffs’ Motion for Summary Judgment (“Comm’n

Resp. to Pls.’ MSJ”) at 7. The Commission takes issue with S.B. 1516’s change to the

definition of “political committee,” arguing that the newly added definition of “primary

purpose” within the definition of “political committee” “plainly purports to exempt from

the reporting requirements of the Act certain entities that would fall under the definition of

‘political committee’ incorporated into the Act.” Id. However, there are only three

references to “political committee” within Article 2—none of which impose reporting

requirements within Article 2. See A.R.S. §§ 16-955 (“No commissioner, during the

commissioner’s tenure or for three years thereafter, shall seek or hold any other public

office, serve as an officer of any political committee or employ or be employed as a


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lobbyist.”); 16-958 (“The secretary of state shall distribute computer software to political

committees to accommodate such electronic filing [of reports required under Article 1].”);

and 16-961 (incorporating definitions from § 16-901).

The Commission also contends that S.B. 1516’s exemptions for certain

contributions in A.R.S. § 16-911(B) “fundamentally undermines” the purpose of Article 2.

See Comm’n Resp. to Pls.’ MSJ at 7. However, A.R.S. § 16-911(B) does not apply to

Article 2. Article 2’s references to “contribution” are controlled by A.R.S. § 16-961,

which only incorporates the definition in A.R.S. § 16-901—not A.R.S. § 16-911(B).2

C. S.B. 1516 Does Not Abrogate the Commission’s Authority.

The Commission’s Response does not actually articulate any conflict between S.B.

1516 and the Commission’s authority. Instead, the Commission pieces together an

amalgamation of statutes in Article 2 in an attempt to justify the Commission’s belief that

it has such broad powers as to “enforce any reporting requirement imposed by title 16,

chapter 6, including reporting requirements in article 1.” Comm’n Resp. at 6. However, a

common sense reading of Article 2 shows that the Commission’s authority is limited to

reporting requirements involving candidates—not any reporting requirement in Article 1.

The Commission predominantly relies upon A.R.S. § 16-942(B), which provides

for civil penalties for violations “by or on behalf of any candidate3 of any reporting

2 The Commission does not challenge the definitional change of “contribution” inA.R.S. § 16-901, which makes sense considering that the change was minimal. CompareA.R.S. § 16-901 (2015) (“‘Contribution’ means any gift, subscription, loan, advance ordeposit of money or anything of value made for the purpose of influencing anelection . . . .”), with A.R.S. § 16-901 (2016) (“‘Contribution’ means any money, advance,deposit or other thing of value that is made to a person for the purpose of influencing anelection.”).

3 The Commission argues that the phrase “by or on behalf of any candidate” inA.R.S. § 16-942(B) does not only apply to candidates. Comm’n Resp. at 7. To the extent§ 16-942(B) does not exclusively apply to candidates themselves, it is limited to reports“on behalf of candidates”—not everyone as the Commission contends. Plainly, Article2’s reporting requirements and corresponding penalties concern candidates for publicoffice—not elections generally. See Legislative Council Analysis, Publicity Pamphlet forProposition 200 (Clean Elections Act), available at http://apps.azsos.gov/election/1998/Info/PubPamphlet/Prop200.html (“Proposition 200 would establish reportingrequirements for participating candidates in addition to the requirements under current lawand would provide for various penalties, including forfeiture of office, for violations.”).


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requirement imposed by this chapter.” Comm’n Resp. at 6 (selectively quoting A.R.S.

§ 16-942(B) (emphasis added)). The Commission then bootstraps some selected

quotations from A.R.S. § 16-957(A) and (B) to contend that Article 2 “gives the

Commission authority to adjudicate suspected violations by ‘a person [who] has violated

any provision of this article,’4 and to assess ‘civil penalt[ies] in accordance with § 16-

942.’” Id. (selectively quoting A.R.S. § 16-957(A), (B) (emphasis added)). After

blending those three provisions together, the Commission concludes that it has the

“enforcement authority over violations of reporting requirements imposed by title 16,

chapter 6, and to impose civil penalties.” Id.

The more accurate and controlling description of the Commission’s enforcement

authority is found in A.R.S. § 16-956 entitled “Enforcement Duties.” That statute makes

clear that the Commission is only entitled to “[e]nforce this article [2]”—not all of

Chapter 6. A.R.S. § 16-956(A)(7) (emphasis added). It also clearly states that the

Commission is only entitled to “monitor reports filed pursuant to this chapter”—not police

reporting requirement violations. Id. (emphasis added).

Further, construction of the Commission’s authority under Article 2 turns upon the

intent of the voters, and here, there is no evidence that the voters believed the Commission

would enforce all reporting requirements in Chapter 6. In fact, at the time the voters

passed Article 2 in 1998, the existing law specified that the secretary of state was to

investigate violations of Article 1 and the attorney general, county attorney, or city

attorney was to impose penalties for such violations of Article 1. A.R.S. § 16-924(A)

(1994) (“Unless another penalty is specifically prescribed in this article, if the secretary of

state has reasonable cause to believe that a person is violating any provision of this article,

the secretary of state shall notify the attorney general for a violation regarding a statewide

office or the legislature, notify the county attorney for that county for a violation

regarding a county office or notify the city or town attorney for a violation regarding a

4 Of course, the Commission overlooks A.R.S. § 16-957(A)’s explicit reference toArticle 2—not Chapter 6.


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city or town office.”). Without some specific clarification in the text of Article 2

specifying that the Commission was going to assume those duties, the voters could not

have intended the Commission to take over those responsibilities from the Secretary of

State and others.

II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ONPLAINTIFFS’ EQUAL PROTECTION CLAIM.

Plaintiffs’ Response does not challenge (or even address) Defendants’ argument

that Plaintiffs’ Equal Protection Claim is moot or that Plaintiffs cannot obtain attorneys’

fees for the moot claim. As such, the Court should grant Defendants summary judgment

on Plaintiffs’ Equal Protection Claim. See Ariz. R. Civ. P. 56(e).

III. S.B. 1516 DOES NOT VIOLATE ARTICLE VII, § 16.

Plaintiffs’ Response advances an interpretation of Article VII, § 16 that is entirely

untethered from the text of Article VII, § 16. According to Plaintiffs, “Once the

legislature acted pursuant to the constitutional mandate in setting the reporting standards

by which persons or entities must report, it cannot then act to reduce or remove the

standards.” Pls.’ Resp. at 15; see also id. at 17 (asserting that “the legislature cannot

unwind or repeal the system it has created under constitutional mandate unless it replaces

it with a similarly compliant measure”). Article VII, § 16, however, only requires the

legislature to pass one law at its first session providing for general publicity. See Ariz.

Const., art. VII, § 16 (“The legislature, at its first session, shall enact a law providing for a

general publicity, before and after election, of all campaign contributions to, and

expenditures of campaign committees and candidates for public office.”). Article VII,

§ 16 says nothing about future laws, maintaining the same law enacted at the first session,

or even what a “law providing for a general publicity” requires. Without any of these

necessary provisions, S.B. 1516 cannot violate Article VII, § 16 because there is no

portion of Article VII, § 16 that S.B. 1516 contravenes.

Plaintiffs also argue that Defendants’ “discussion of a private right of action or

self-executing provision is irrelevant” because Plaintiffs are only “asking for prospective,


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injunctive relief.” Pls.’ Resp. at 16. Precisely because Plaintiffs are seeking relief

demonstrates why Plaintiffs must establish the predicate cause of action—i.e., a private

right of action. See Lancaster v. Ariz. Bd. of Regents, 143 Ariz. 451, 454 (App. 1984).

Similarly, because Article VII, § 16 is not self-executing in that it requires the legislature

to prospectively “enact a law,” it is only the subsequent enactment that could potentially

create a private cause of action—not Article VII, § 16’s requirement for the legislature to

pass a law.

IV. CONCLUSION

Because neither Plaintiffs nor the Commission can show that S.B. 1516 amends,

supersedes, or repeals any statute in Article 2, Plaintiffs’ VPA claim must fail. Plaintiffs’

claim under Article VII, § 16 should similarly fail because that constitutional provision

does not afford Plaintiffs a private right of action. Accordingly, the Court should deny

Plaintiffs’ Motion for Summary Judgment and grant the State’s and the Secretary’s Cross-

Motion for Summary Judgment.

DATED this 17th day of July, 2018.


By /s/ Timothy BergTimothy BergJanice Proctor-MurphyEmily WardAttorneys for DefendantsState of Arizona andSecretary of State Michele Reagan


PH O E N I X

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- 12 -

ELECTRONICALLY FILEDon the 17th day of July, 2018, with theClerk of the Maricopa County SuperiorCourt using AZTurboCourt.

COPY transmitted via eFiling system to:

The Honorable Janice CrawfordMaricopa County Superior Court222 E. Javelina Avenue, Room 2E/205Mesa, AZ 85210-6234

A copy has been emailed and mailed this17th day of July, 2018, to:

Israel G. TorresJames E. Barton IISaman J. GolestanTorres Law Group, PLLC2239 West Baseline RoadTempe, AZ 85283Email: [email protected] for Plaintiffs

Mary R. O’GradyJoseph N. RothNathan T. ArrowsmithOsborn Maledon, P.A.2929 N. Central Avenue, Suite 2100Phoenix, AZ 85012-2793Email: [email protected]: [email protected]: [email protected] for The Citizens Clean Elections Commission

Timothy A. La SotaTimothy A. La Sota, PLC2198 E. Camelback Road, Suite 305Phoenix, AZ 85016-4747Email: [email protected] for GRCC Members

/s/ Phyllis Warren

Chris DeRose, Clerk of Court

*** Electronically Filed ***

07/16/2018 8:00 AM


MARICOPA COUNTY

CV 2018-009512 07/13/2018

Docket Code 001 Form V000A Page 1

CLERK OF THE COURT

HONORABLE MARGARET R. MAHONEY G. Verbil

Deputy

ARIZONA CITIZENS CLEAN ELECTIONS

COMMISSION

MARY R O'GRADY

v.

JAVAN MESNARD, et al.

TIMOTHY BERG

JUDGE GATES

MINUTE ENTRY

The Court learned today that this elections matter has been assigned to it. The parties

have today filed a stipulation to set an expedited briefing schedule on their cross-motions for

summary judgment and have also requested oral argument on those cross-motions on an

accelerated basis to be held July 27, 30, 31 or August 1, 2018.

This Division recuses itself due to unavailability and defers to Judge Gates to reassign the

matter to a Judge who will be available during the dates at issue.

ITEM V - Superior Court Ruling in Single Subj Case

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Mary R. O’Grady, No. 011434 Joseph N. Roth, No. 025725 Nathan T. Arrowsmith, No. 031165 OSBORN MALEDON, P.A. 2929 N. Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 (602) [email protected]@[email protected]

Attorneys for Defendant


IN AND FOR THE COUNTY OF MARICOPA

Legacy Foundation Action Fund, an Iowa non-profit corporation,

Plaintiff,

vs.

Citizens Clean Elections Commission,

Defendant.

No. CV2018-004532 Consolidated with CV2018-006031

CITIZENS CLEAN ELECTIONS COMMISSION’S MOTION TO DISMISS

Citizens Clean Elections Commission,

Plaintiff,

vs.

Legacy Foundation Action Fund, an Iowa non-profit corporation,

Defendant.

(Assigned to the Honorable Christopher Whitten)

The complaint filed by Legacy Foundation Action Fund (“LFAF”) in this matter

is barred and should be dismissed. LFAF’s complaint is an impermissible collateral

attack on a final decision of the Citizens Clean Elections Commission (the

“Commission”). LFAF had an opportunity to raise all of its claims challenging the

Commission’s decision via direct appeal of the Commission’s decision. LFAF failed to

timely do so and the Arizona Supreme Court unanimously affirmed the dismissal of its

Chris DeRose, Clerk of Court*** Electronically Filed ***

R. Sotelo, Deputy7/11/2018 3:36:00 PM

Filing ID 9507983

ITEM V - LFAF - 2018 Special Action - FILED CEC Motion to Dismiss 1

1 case. See Legacy Found. Action Fund v. Citizens Clean Elections Comm ’n, 408 P.3d

2 828 (Ariz. 2018).

LFAF’s complaint is yet another round of litigation in LFAF’s effort to undo its

error. But the special action jurisdiction it invokes does not apply here. Special action

jurisdiction is available only when there is no adequate remedy available via appeal.

LFAF had the right to appeal; it failed to invoke its right. The failure to take advantage

of a right to appeal does not convert an adequate right to appeal into an inadequate one.

See Rosenberg v. Ariz. Bd. of Regents, 118 Ariz. 489, 493 (1978) (where appellant “had

appeal under the Administrative Review Act, it cannot be said she did not have an

adequate remedy at law” even though she failed to timely file an appeal). The

Commission’s decision is now final, conclusively presumed to be just, reasonable, and

lawful, and res judicata as to all issues that were or might have been litigated. LFAF is

therefore precluded from re-litigating the Commission’s decision and the Court should

dismiss LFAF’s complaint in its entirety.

Factual Background.

The relevant factual background of this complaint has been laid out numerous

times in several briefs of which the Court can take judicial notice.

In 1998, Arizona voters approved the Citizens Clean Eleetions Act (the “Acf’), a

statutory scheme which created the Commission. See A.R.S. §§16-940 to-961. The

Act charges the Commission with the responsibility to “[ejnforce this article[.]” A.R.S.

§ 16-956(A)(7). As part of the Commission’s enforcement duties, the Act authorizes

the Commission to impose penalties for a failure to comply with the Act’s reporting and

disclosure requirements for campaign-related spending and advertising. See A.R.S.

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24See Defendant’s Motion to Dismiss and Reply in Support, Maricopa County Superior

Court Case No. LC 2015-00172-001; Defendant/Appellee’s Answering Brief, Arizona

Court of Appeals Case No. 1 CA-CV-15-0455; Defendant/Appellanf s Response to

Petition for Review and Supplemental Brief, Arizona Supreme Court Case No. CV-16-

0306-PR. See also Defendant’s Motion to Dismiss and Reply in Support, Maricopa

County Superior Court Case No. CV 2015-004730.

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§ 16-942. These requirements inelude disclosures regarding “independent

expenditures” made to advocate for the election or defeat of a candidate. See A.R.S.

§ 16-941(D) (setting forth disclosure requirements for “independent expenditures

related to a particular office”).

On July 1, 2014, the Commission received a complaint alleging that LFAF

violated A.R.S. §§ 16-941 and 16-958(A)-(B) by failing to file certain required

independent expenditure reports.^ After reviewing the complaint, the Commission

found reason to believe that LFAF had committed the violations alleged and on

September 26, 2014, issued an Order Requiring Compliance (the “Compliance Order”^),

requiring LFAF to comply with the Act and file the reports required by A.R.S. §§16-

941(D) and 958 and Ariz. Admin. Code R2-20-109 within 14 days. LFAF did not file

the required reports within 14 days.

Because LFAF remained out of compliance with the Act, at a subsequent public

meeting the Commission found probable cause to believe that LFAF had violated the

Act and authorized the issuance of an order assessing civil penalties. The Commission

then entered an order on November 28, 2014 (the “November 28 Order”), in which it

concluded that LFAF had violated the Act and imposed a civil penalty of $95,460 in

accordance with A.R.S. § 16-942. Collection Action, Ex. C.

LFAF requested an administrative hearing and one was held before an

Administrative Law Judge (“ALJ”). On March 4, 2015, the ALJ issued a Decision

sustaining LFAF’s appeal and rescinding the November 28 Order. Pursuant to A.R.S.

§ 41-1092.08(B), the Commission then accepted part and rejected part of the ALJ’s

decision, and on March 27, 2015, the Commission entered a final administrative order

imposing a civil penalty of $95,460 on LFAF (the “Final Order”). Collection Action,

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25 2 LFAF filed a special action on July 18, 2014, CV 2014-003968, seeking to prevent the Commission from considering the complaint. That special action was dismissed

because LFAF had failed to exhaust its administrative remedies.

3 The Compliance Order is attached as Exhibit B to the Commission’s complaint in

CV2018-006031 (the “Collection Action”).

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Ex. A. The Final Order concluded that LEAF’S advertisement was an independent

expenditure and subject to the reporting requirements in A.R.S. §§ 16-941 and 958 and

affirmed the civil penalty of $95,460 originally assessed in the November 28 Order.

Collection Action, Ex. A.

Eighteen days after the issuance of the Final Order, on April 14, 2015, LEAF

filed a complaint (the “Administrative Appeal”) seeking judicial review of the Final

Order in superior court under the Judicial Review of Administrative Decisions Act

(“JRADA”). The superior court dismissed the Administrative Appeal because the Act

states that a party “has fourteen days from the date of issuance of the order assessing the

penalty to appeal to the superior court as provided in” JRADA, A.R.S. § 16-957(B), and

the Administrative Appeal was not filed within that timeframe. Collection Action,

Ex. D.

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LEAF appealed and the dismissal was upheld by both the Court of Appeals and

the Arizona Supreme Court."^ See Legacy Found. Action Fund, 408 P.3d 828. The

Supreme Court issued its Mandate on February 13, 2018. Collection Action, Ex. E. On

April 11, 2018, the Commission’s Executive Director sent a letter to counsel for LEAF

demanding payment in full of the Final Order. Collection Action, Ex. F. LEAF has

neither paid any portion of the Final Order, nor has it complied with the Act and

submitted the independent expenditure reports required by the Compliance Order, the

Final Order, and the Act.

The Commission therefore filed the Collection Action asking the Court to enter

judgment against LEAF for the amount of the penalty assessed in the Final Order and to

order LEAF to submit the required reports. On the same day, LEAF filed CV2018-

004532 (the “Special Action”), seeking again to delay its compliance with the Final

Order.

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The Special Action should be dismissed because special action jurisdiction

is not available to LFAF.

This is now the third time LFAF has tried to bring a speeial action making the

arguments it raised in its untimely Administrative Appeal. But Arizona law is clear that

^FAF may not use this Court’s special action jurisdiction as a substitute for an appeal.

When there is a remedy available by appeal, special action jurisdiction is not available.

State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 76 (1990). Indeed, Arizona court rules

make this clear by stating that “the special action shall not be available where there is

equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. Spec. Act. 1(a)

(emphasis added). This rule reinforces the “strong Arizona policy against using

extraordinary writs as substitutes for appeals.” Neely, 165 Ariz. at 76; see also Ariz. R.

P. Spec. Act. 1, St. B. Comm. Note (a) (noting that special action jurisdiction is limited

due to the strong policy in this state that the writs are subordinate to and are not a

substitute for appeal”).

There is no question that LFAF had an adequate remedy available by appeal

under A.R.S. § 16-957(B), which provides that aggrieved parties may appeal a final

Commission order pursuant to JRADA. The Special Action seeks review of the very

legal claims LFAF raised in the Administrative Appeal. See LFAF Notice of

Appeal and Complaint in Case No. LC 2015-00172-001, attached as Exhibit 1; LFAF

Opening Brief in Case No. LC 2015-00172-001, attached as Exhibit 2. Accordingly,

because LFAF had an appeal as of right on these very issues, special action jurisdiction

shall not” be available to LFAF as a substitute.

The fact that LFAF failed to timely file the Administrative Appeal (and thereby

deprived the superior court of jurisdiction over it) does not render the availability of the

remedy inadequate or somehow trigger the availability of special action jurisdiction.

Neely, 165 Ariz. at 77 (a special action petitioner cannot show a need for special action

relief “when a petitioner fails to seek relief until after its remedy at law has been

abandoned through inaction”); Rosenberg, 118 Ariz. at 493 (where appellant “had an

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appeal under the Administrative Review Act, it cannot be said she did not have an

adequate remedy at law” even though she failed to timely file an appeal); Hurst v.

Bisbee Unified Sch. Dist. No. Two, 125 Ariz. 72, 75 (App. 1979) (special action in the

nature of mandamus “does not lie to correct errors in an appealable judgment and

cannot be used as a substitute for the ordinary channels of appeal”).

This rule applies with even more force here where LFAF was a full participant in

the administrative proceedings leading up to the administrative decision. It is not as if

LFAF were an absent entity surprised to find an agency order entered against it who

then missed a close-in-time appeal deadline. LFAF litigated at every stage of the

proceeding and “fail[ed] to seek relief until after its remedy at law [had] been

abandoned through inaction.” Neely, 165 Ariz. at 77.

LFAF contends, however, that it is permitted to bring an independent, collateral

attack on the Commission’s jurisdiction notwithstanding its failure to timely appeal the

Final Order. The Arizona Supreme Court has twice foreclosed this argument in this

context. Most recently, in Smith v. Arizona Citizens Clean Elections Commission - a

dealing with exactly the same statutes as are at issue here - the Arizona Supreme

Court held that the plaintiff. Smith, could not save his untimely appeal by construing his

complaint as a separate action for declaratory relief to which the 14-day deadline did not

apply. 212 Ariz. 407, 416-17 48-50 (2006). The court held that the plaintiff “was

required to raise all of his challenges to the Commission’s actions and his related

constitutional claims in a timely complaint for judicial review” and could “not use a

complaint for declaratory relief as a substitute for a timely complaint.” Id.

In Rosenberg, the Court noted that older cases have held that “appeal pursuant to

the Administrative Review Act” is not exclusive because “[cjommon law extraordinary

writs may be used to attack the jurisdiction of the agency where there is no plain,

speedy and adequate remedy at law.” 118 Ariz. at 493. Thus, explained the Court,

facts luust appear” to indicate that a party “did not have an adequate remedy at law.

The Court coneluded that because the “appellant had an appeal under the Administrative

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Review Aet, it eannot be said she did not have an adequate remedy at law” - even

though she had failed to timely seek review. Id.

In other words, Rosenberg and Smith instruct that when an appeal is available in

which a party can bring its jurisdictional or other constitutional challenges, the party

must bring those claims via the available appeal. A party may not fail to timely file an

appeal and then rely on the special action procedure to save those claims.

Here, LFAF relies on the principle that collateral challenges to jurisdiction are

permitted but ignores the requirement that special action procedure/extraordinary writs

may be used only if there is not an adequate remedy by appeal. With Rosenberg and

Smith, the Arizona Supreme Court has made it clear that LFAF is mistaken. The special

action procedure is not a do-over for untimely appeals.

Finally, LFAF (Mem. of Law at 9) cites Legacy as somehow authorizing or

inviting” it to file the Special Action. That is nonsense. Nothing in Legacy alters the

precedent discussed above. There, the Court stated that it “express[ed] no view on

whether [LFAF] may pursue alternative procedural means to challenge the

Commission’s penalty order as void.” 408 P.3d at 832 ^ 19. This sentence cannot be

read as anything more than the court declining to opine on issues not before it. It does

not create a right where none exists or change the fact that LFAF had, but failed to

utilize, an adequate remedy by appeal.

LFAF’s claims are precluded in any event.

Even if the Court is inclined to exercise special action jurisdiction, LFAF’s

claims are precluded for several reasons and should be dismissed.

Administrative orders which are not appealed may not be

collaterally attacked.

First, where a party fails to timely appeal an administrative order, Arizona courts

conclusively” presume that the order is “just, reasonable and lawful.” Gilbert v. Bd. of

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Med. Examiners of State ofAriz., 155 Ariz. 169, 176 (App. 1987)^ (quoting 125

Ariz. at 75). This principle applies “even to alleged eonstitutional errors which might

lave been eorrected on proper application to the eourt whieh has jurisdiction of the

appeal.” Gilbert, 155 Ariz. at 176 (quoting125 Ariz. at 75). Accordingly, a

collateral attaek on the administrative order is “precluded” by a party’s failure to appeal.

Gilbert, 155 Ariz. at 176 (quoting Hurst, 125 Ariz. at 75). The Final Order is therefore

eonclusively” presumed to be “just, reasonable and lawful,” and LFAF’s failure to

appeal the Final Order preeludes it from collaterally attaeking the Final Order even if

alleged eonstitutional errors [ ] might have been corrected” by a timely appeal. The

Court should dismiss the Speeial Action on this basis alone.

The Final Order is res judicata and LFAF is precluded from relitigating it in this Special Action.

Failure to appeal a final administrative deeision makes that decision final and

judicata.” Gilbert, 155 Ariz. at 174 (citing Hurst). Res Judieata embraees two

coneepts: “claim preclusion and the related coneept of issue preelusion.” Pettit v. Pettit,

218 Ariz. 529, 530 n.2 (App. 2008) (eiting Restatement (Second) of Judgment,

introductory note to ch. 3 (1982)).

Claim preelusion, as the name suggests, bars an entire claim. “[Wjhen a party

has brought an action and a final, valid judgment is entered,” the party is then

foreclosed from further litigation on the claim[.]” Circle K Corp. v. Indus. Comm ’n of

Ariz., 179 Ariz. 422, 425 (App. 1993). A future elaim is preeluded only when “the

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administrative order may be eollaterally attacked “where the jurisdietion of the

administrative ageney is questioned,” and eites A.R.S. § 12-902(B) and State ex rel Dandoy v. Phoenix, 133 Ariz. 334, 336 (App. 1982) as support. 155 Ariz. at 175.LFAF relied on these authorities to make the same arguments in the Administrative

Appeal and they were soundly rejected by the Supreme Court in Legacy. “§ 12-902(B)

does not ereate an exeeption to the time allotted to take an appeal from a final agency

decision. We therefore disavow the language in . . . Dandoy that eonstrues § 12-902(B)

to provide limitless entitlement to ehallenge an administrative ageney’sjurisdiction[.]

Legacy, 408 P.3d at 83n 15.

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matter now in issue between the same parties or their privities was, or might have been,

determined in the former action.

Gilbert, 155 Ariz. at 174 (noting that res judicata “binds the same party standing in the

same capacity in subsequent litigation on the same cause of action, not only upon facts

actually litigated but also upon those points which might have been litigated.”)-

The doctrine of issue preclusion prevents a party from re-litigating an issue

where the party “had a full opportunity to litigate the issue” and “actually did litigate the

in a prior proceeding where “a final judgment was entered” and “the issue was

essential to a final judgment.” Circle K Corp., 179 Ariz. at 425.

The Special Action is barred by claim preclusion.

All the elements of claim preclusion are present here. First, there is no question

that the Special Action involves the same parties as the Administrative Appeal - LFAF

the plaintiff there, as it is here, and the Commission was the defendant. Second, the

claims asserted and issues raised are the same, as is the evidence relied upon. Here, just

as in its Administrative Appeal, LFAF seeks a judicial determination that the

Commission acted outside of its statutory authority and jurisdiction (Ex. 1, 24(b), (h);

Special Action Compl. 35, 39, 47, 51-55). In both cases, LFAF relies solely upon the

statutes contained in the Clean Elections Act and the same set of background facts.

Thus, no additional evidence would be “needed to prevail” in this action. Although the

surrounding the Commission’s jurisdiction were not actually litigated in LFAF’s

Administrative Appeal as a result of the complaint’s untimeliness, claim preclusion bars

those points “which might have been litigated.” Pettit, 218 Ariz. at 531.

Finally, the dismissal of the Administrative Appeal also operates as a final

judgment on the merits for purposes of claim preclusion. See, e.g., Torres v. Kennecott

Copper Corp., 15 Ariz. App. 272, 274 (1971) (“[A] dismissal with prejudice is a

judgment on the merits . . . and is therefore res judicata as to every issue reasonably

framed by the pleadings.”); Leon v. IDXSys. Corp., 464 F.3d 951, 962 (9th Cir. 2006)

(a dismissal with prejudice is a determination on the merits for purposes of res judicata).

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Hall V. Lain, 194 Ariz. 54, 57 7 (1999); .yee also’>•>2

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Because all the elements of claim preclusion are present here, the Special Action is

5arred and should be dismissed.

The claim preclusion here further undermines LFAF’s contention that it should

he able to bring a collateral attack on jurisdiction. The cases LFAF cites (Mem. of Law

at 9-11) for that principle involve parties bringing jurisdictional claims for the first time,

not repeat claims in successive cases (i.e., not when the party was a party to an

administrative proceeding, had a right to appeal an adverse decision including on

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jurisdictional grounds, yet failed to exercise its right of appeal):

Tucson Warehouse & Transfer Co. v. ATs Transfer, Inc., 11 Ariz. 323 (1954) (challenge brought by non-party to agency decision; no challenge to jurisdiction at the agency level).

Pac. Greyhound Lines v. Sun Valley Bus Lines, 70 Ariz. 65 (1950) (same).

Tucson Rapid Transit Co. v. Old Pueblo Transit Co., 19 Ariz. 327 (1955) (same).

Ariz. Pub. Serv. Co. v. S. Union Gas Co., 76 Ariz. 373 (1954) (same).

Whitfield Transp., Inc. v. Brooks, 81 Ariz. 136 (1956) (challenge to ex parte order of Corporation Commission; no challenge at agency level).

Dallas V. Ariz. Corp. Comm’n, 86 Ariz. 345 (1959) (same).

State V. Downey, 102 Ariz. 360 (1967) (“direct attack” on authority of Board of Supervisors to incorporate a town).

Rural/Metro Corp. v. Ariz. Corp. Comm’n, 129 Ariz. 116 (1981) (challenge to constitutionality of a statute not brought as part of or as appeal from agency proceeding).

George v. Ariz. Corp. Comm ’n, 83 Ariz. 387 (1958) (challenge by third party to Corporation Commission order; no prior jurisdictional challenge).

LFAF, however, has already challenged jurisdiction at the administrative,

superior court, and appellate levels and had its case dismissed. Thus, unlike with LFAF,

claim preclusion would not apply in the cases cited by LFAF because those cases did

not involve a previous order which could have preclusive effect. See, e.g.,Ariz. Bd. of

Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State ofAriz. Pub. Safety Ret.

Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989) (permitting challenge to agency

jurisdiction when party had never attempted to challenge jurisdiction).

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The Special Action is also barred by issue preclusion.

Similarly, all the elements of issue preelusion are present here: (1) LFAF had a

full opportunity to litigate the issue of the Commission’s jurisdietion in the proeeeding

before the Commission, (2) LFAF did, in faet, litigate the issue; (3) a final judgment

entered - the Final Order - and (4) the issues raised in LFAF’s eomplaint were

essential” to the Final Order. Circle K Corp., 179 Ariz. at 425. Aeeordingly, LFAF is

larred from seeking to re-litigate these issues. Id.

Gilbert eonfirms that the doetrine of issue preclusion applies to administrative

proceedings. See 155 Ariz. at 174-75 (concluding that a litigant was barred from

seeking to re-litigate issues determined during an administrative proceeding). There,

the Board of Medical Examiners held an administrative hearing and revoked the

medical license of a doctor. Id. at 173. The doctor did not seek judicial review of the

Board’s decision. Id. The doctor subsequently sued the Board but the superior court

dismissed, concluding that his suit was an impermissible collateral attack on the Board’s

revocation order. Id. The Court of Appeals agreed, noting that the doctor could only

prevail on his tort claims by “proving that the revocation was improper” and that

pivotal issue has already been litigated and decided against him.

Gilbert, the Commission’s authority to issue the Final Order has already been litigated

and decided against LFAF and LFAF may not now re-litigate those issues.

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The Court should see this Special Action for what it is — the latest attempt by

LFAF to make up for the fact that it failed to timely appeal the Final Order. But LFAF

cannot undo well-settled Arizona law. This Court’s special action jurisdiction is not

available where, as here, the petitioner had an adequate remedy by appeal.

Additionally, LFAF’s failure to timely appeal the Final Order gives the Final Order

preclusive effect and LFAF is barred from re-litigating issues that were, or might have

IV.

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been deeided, in the administrative proceedings leading to the Final Order or in its

failed Administrative Appeal. The Special Action should therefore be dismissed.


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OSBORN MALEDON, P.A.4

5

/s/ Nathan T. Arrowsmith6 ByMary R. O’GradyJoseph N. RothNathan T. Arrowsmith2929 N. Central Avenue, Suite 2100Phoenix, Arizona 85012-2793

7

8

9Attorneys for Defendant

10

11THE FOREGOING has been electronically

filed this 11th day of July, 2018.

COPY of the foregoing mailed and e-mailed

this 11th day of July, 2018, to:

Brian M. Bergin Bergin, Frakes, Smalley

& Oberholtzer, PLLC 4343 E. Camelback Rd., Suite 210 Phoenix, AZ 85018 bbergin@bfsolaw. com

Jason Torchinsky Holtzman Vogel Josefiak PLLC 45 N. Hill Drive, Suite 100 Warrenton, VA 20186 [email protected]

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/s/ Debra Huss227653066

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Exhibit 1

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Brian M. Bergin, #016375Bergin, Brakes, Smalley & Oberholtzer, PLLC4455 East Camelback Road, Suite A-205Phoenix, Arizona 85018Telephone; (602) 888-7857Facsimile; (602) [email protected] for Plaintiff/Appellant

1

2

3

4

5

Jason TorchinskyHoltzman Vogel Josefiak PLLC45 North Hill Drive, Suite 100

Warrenton, VA 20186

Telephone; (540) 341-8808

Facsimile; (540) 341-8809

[email protected]

Co-Counsel for Plaintiff/Appellant

6

7

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11 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA12

IN THE COUNTY OF MARICOPALC20'5-000172-'CO L13

LEGACY FOUNDATION ACTION

FUND, an Iowa non-profit corporation,No.

14

15 NOTICE OF APPEAL AND

COMPLAINT FOR JUDICIAL

REVIEW OF ADMINISTRATIVE

DECISION

PlaintifEAppellant,16

vs.17

CITIZENS CLEAN ELECTIONS

COMMISSION;18

19Defendant/Appellee.

20Plaintiff/Appellant, Legacy Foundation Action Fund (“Plaintiff’) by and through

21

undersigned counsel for its Notice of Appeal and Complaint for Judicial Review of22

23 Administrative Decision hereby alleges as follows:

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1 14



PARTIES, JURISDICTION AND VENUE1

1. Plamtiff/Appellant Legacy Foundation Action Fund is an Iowa non-profit2

corporation, operating under Section 501(c)(4) of the Internal Revenue Code.3

4 2, Defendant/Appellee Citizens Clean Elections Commission (the “Commission”) is

5an Arizona governmental entity established by the Citizens Clean Elections Act (the “Act”),

6A.R.S. §§ 16-940, et seq., to implement the Act

73. On July 1,2014 a complaint was filed with the Arizona Secretary of State and the8

Commission claiming that Plaintiff had run an “express advocacy” television advertisement9

10 (the “Subject Advertisement”) but had failed to file the necessary registration and campaign

11 finance disclosure forms with the Arizona Secretary of State and the Commission (the

12Complaint Below”).

134. Specifically, the Complaint Below alleged that Plaintiff violated A.R.S. §§16-

14

914.02, -941(D) and -958(A)-(B).15

5. In response to the Complaint Below, the Arizona Secretary of State, acting16

17 through Maricopa County Elections, dismissed the matter on July 21,2014.

186. By contrast, in response to the same Complaint Below, the Commission initiated

19its regulatory process and commenced proceedings before the Commission captioned In re

20Legacy Foundation Action Fund numbered 15F-001-CCE.

21

7. On July 31,2014, the Commission declared it had jurisdiction to consider the22

allegations of the Complaint Below.23

24 8. On September 11,2014, the Commission found “reason to believe” that a

25violation of the Act occurred and authorized an investigation.

2 15

9. The basis for the Commission’s “reason to believe” finding was a conclusion that

the Subject Advertisement was an independent expenditure and that Plaintiff violated

1

2

A.R.S. §§ 16-941(D) and -958 by failing to report those expenditures.3

4 10. Plaintiff filed a Special Action, Case No. CV2014-003968, in this court on July

518,2014, challenging the Commission’s jurisdiction over this matter and asserting the

6unconstitutionality of A.R.S. § 16-901.01(A). On September 23,2014, this Court dismissed

7the matter finding that the issue of jurisdiction could be addressed upon exhaustion of8

administrative remedies.9

10 11. On September 26,2014, the Commission issued a Compliance Order along with

11 written questions to be answered under oath verifying Plaintiffs spending in Arizona,12

12. Plaintiff declined to answer the questions in a letter dated October 3,2014,13

claiming that the Commission’s inquiries were not relevant to the Complaint Below, the14

Commission had no authority to ask about Plaintiff s spending in Arizona, was without15

jurisdiction over the Complaint Below, and was without authority to impose penalties.16

17 13. On November 20,2014, the Commission found probable cause to believe

18Plaintiff had violated the Act and authorized the assessment of $95,460 in penalties.

1914. On November 28,2014, the Commission issued an order assessing civil penalties

20against Plaintiff (the “Order”) and a Notice of Appealable Agency Action.

21

15. Plaintiff appealed the Commission’s Order by requesting an administrative22

hearing, which was conducted by the Office of Administrative Hearings on January 28,23

24 2015.

25

3 16

16. On March 4,2015, Administrative Law Judge Thomas Shedden entered his1

Decision (the “ALJ’s Decision”) and concluded, in part, that; (a) Plaintiffs Subject2

Advertisement does not constitute “express advocacy”; and (b) the Commission’s3

4 assessment of civil penalties did not comply with A.R.S. § 16-942(B).

517. The ALJ’s Decision, therefore, ordered that Plaintiffs appeal should be sustained

6and the Commission’s Order should be rescinded.

718. The Commission, however, rejected die ALJ’s Decision and rendered a Final8

Administrative Decision dated March 27,2015, which declared: (a) the Commission has9

10 jurisdiction and authority to enforce violations of the Act; (b) the Subject Advertisement is

11 express advocacy” within the definition of A.R.S. §16-901.01(A)(2); and (c) the12

Commission has authority to impose the civil penalties it originally assessed against13

Plaintiff under A.R.S. § 16-942(B) (the “Decision”).14

19. In the Decision, the Commission reinstated its civil penalty of $95,460 against15

Plaintiff.16

17 20. This Notice of Appeal and Complaint for Judicial Review of Administrative

18Decision (the “Complaint”) constitutes a Notice of Appeal of the Commission’s Decision.

1921. Jurisdiction is appropriate in this Court to hear and determine this Complaint and

20to grant the requested relief by virtue of A.R.S. § 12-905(A) for the reason that this action is21

a review of a final administrative action authorized under A.R.S. §§12-901 et seq. and the22

Arizona Rules of Procedure for Judicial Review of Administrative Decisions.23

24 22. Venue for this action is proper in the Superior Court of Maricopa County for the

25reason that the proceeding culminating in the Decision was conducted in this County.

4 17

23. Plaintiff was served with a copy of the Decision in conformity with A.R.S. § 12-1

904 on or about March 27,2015.2

24. Said Decision is contrary to law and invalid because:3

4 There is no substantial evidence to support the findings of thea.

5Commission or to support the Decision;

6b. The Decision is an abuse of discretion and arbitrary and capricious in that

7the Commission exceeded its statutory authority in asserting jurisdiction8

over Plaintiff.9

c. The Decision is an abuse of discretion and arbitrary and capricious in that10

11 the Commission erred when it made findings of fact and law when it was

12undisputed that, at the time Plaintiff ran the Subject Advertisement, the

Arizona Superior Court had ruled A.R.S. § 16-901.01(A)’s definition of13

14expressly advocates” was unconstitutional.U

15

d. The Decision is an abuse of discretion and arbitrary and capricious in that16

17 the definition of “Expressly Advocates”, on its face, as set forth in A.R.S.

18 § 16-901.01 and interpreted and applied by the Commission is facially19

unconstitutional and unconstitutional as applied to Plaintiff under the First20

Amendment of the United States Constitution and Article 2, § 6 of the21

Arizona Constitution.22

e. The Decision is an abuse of discretion and arbitrary and capricious in that23

24 the definition of “Expressly Advocates,” on its face, as set forth in A.R.S.

25§ 16-901.01 and as interpreted and applied by the Commission is

5 18

substantially overbroad because it infringes upon speech protected by the1

First Amendment of the United States Constitution and Article 2, § 6 of2

the Arizona Constitution,3

4 f. The Decision is an abuse of discretion and arbitrary and capricious in that

5the definition of “Expressly Advocates”, on its face, as set forth in A.R.S.

6§ 16-901.01 and as interpreted and applied by the Commission is void for

7vagueness under the First Amendment for the United States Constitution8

and Article 2, § 6 of the Arizona Constitution because it fails to give9

10 persons of ordinary intelligence a reasonable opportunity to learn what

11 speech is regulated and which is not, nor does it provide explicit standards

12for the Commission to apply.

13g. The Decision is an abuse of discretion and arbitrary and capricious in that

14

the Commission violated the First Amendment when it relied upon a15

improper and subjective analysis finding Plaintiffs Subject Advertisemeni16

17 constituted “express advocacy” that had no other reasonable

18interpretation.

19h. The Decision is an abuse of discretion and arbitrary and capricious in that

20the Commission exceeded its statutory authority when it imposed civil

21

penalties against Plaintiff under A.R.S. § 16-942(B).22

23 i. The Commission’s registration and reporting regulation, Ariz, Admin.

24 Code § R2-20-109(F), adopted pursuant to A.R.S. § 16-942(B) exceeds its

25statutory authority as applied to regulation of independent expenditures.

6 19

25. Plaintiff is harmed by the Commission’s illegal and invalid Decision.1

26. Plaintiff designates the entire record of the proceedings below and requests that2

the complete record maintained by both the Commission and the Office of Administrative3

4 Hearings be transmitted as part of the record on review.

5WHEREFORE, Plaintiff prays for relief against the Commission as follows:

6A. For a stay of enforcement of the Decision of the Commission until final

7disposition of this appeal;8

B. For judgment against the Commission reversing said Decision;9

10 C. For Plaintiffs attorney’s fees and expenses incurred herein pursuant to A.R.S.

11 § 12-348.12

D. For such other and further relief as this Court deems just and proper.

DATED this i^rjay of April, 2015.13

14

Bergin, Frakes, Smalley & Oberholtzer, PLLC15

16(SriSlB

17 4455 East Camelback Road, Suite A-205


Attorneys for Plaintiff/Appellant18

19

ORIGINAL of the foregoing filed this

day of April, 2015 at:20

21Clerk of the Court Maricopa County Superior Court 201 W. Jefferson

Phoenix, Arizona

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7 20

Exhibit 2

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1Brian M. Bergin, #016375Kenneth M. Frakes, #021776Bergin, Frakes, Smalley & Oberholtzer, PLLC4455 East Camelback Road, Suite A-205


Telephone: (602) 888-7857

Facsimile: (602) 888-7856

[email protected]@bfsolaw.com

Attorneys for Petitioner/Appellant

2

3

4

5

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7Jason TorchinskyHoltzman Vogel Josefiak PLLC45 North Hill Drive, Suite 100

Warrenton, VA 20186

Telephone: (540)341-8808

Facsimile: (540) 341-8809

[email protected]

Co-Counsel for Petitioner/Appellant

8

9

10

11

12

13 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

14IN AND FOR THE STATE OF ARIZONA

15

In the Matter of16 Case No. LC2015-000172-001

17 LEGACY FOUNDATION ACTION FUND, OPENING BRIEF OF

PLAINTIFF/APPELLANT

LEGACY FOUNDATION

ACTION FUND

18

PlaintiffrAppellant,19

20 vs.

21CITIZENS CLEAN ELECTIONS

COMMISSION22

23 Defendant/Appellee.

24

25

122




INTRODUCTION1

The First Amendment declares that “Congress shall raalce no law . . . abridging the2

freedom of speech___ ” U.S. Const, amend. I. This is so because “Speech is an essential

mechanism of democracy, for it is the means to hold officials accountable to the people."

Citizens UnUed v. FEC, 558 U.S. 310, 339 (2010). Therefore, the right of citizens to

disseminate and receive infonnation is a prerequisite to an “[ejnlightened self-govemmenl

and a necessary means to protect it.” Id. Because of this, “The First Amendment has its

fullest and most urgent application to speech uttered during a campaign for political office."

Id. (internal quotation marks omitted).

The U.S. Supreme Court has ruled that the application of intent- or purpose- based

tests to determine whether speech constitutes express advocacy does not serve the “[vjaiues

the First Amendment . . . [because they open] the door to a trial on every ad . . . on the

theory that the speaker actually intended to affect an election, no matter how compelling the

indications that the ad concerned a pending legislative or policy issue.” FEC v. Wis. Right to

Life, Inc., (I^WRTU^) 551 U.S. 449,468 (2007). A subjective, intent-based test chills speech

because the test “blankets with uncertainty” whether the speech in question is express

advocacy subject to regulation or issue advocacy. Id. Rather, issue advocacy speech

deserves special protections because “In a republic where the people are sovereign, the

ability of the citizenry to malce informed choices among candidates for office is essential."

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22Buckley v. Valeo, 424 U.S, 1, 14-15 (1976) (per curiam).23

This case presents several discreet questions. First, is whether the Citizens Clean

Elections Commission (“CCEC”) exceeded its statutory authority by asserting jurisdiction

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2 23

ill tliis matter in tiie first instance since the PlaintiffiAppellant, Legacy Foundation Action1

Fund (“LFAF”) is not a candidate. Second, is whether the CCEC exceed its statutoiy'2

autliority by asserting jurisdiction over reporting of independent expenditures. Along those3

4 same lines, is whether the CCEC committed a constitutional violation by enforcing a

5statutory definition that had been declared unconstitutional at the time LFAF acted.

6Next, if CCEC has jurisdiction and did not violate the constitution by enforcing the

7statute declared unconstitutional at the time, did the CCEC violate the First Amendment by8

applying a subjective, intent based test to an advertisement aired by LFAF to detennine9

10 whether speech is express advocacy? Essentially, the question is whether the CCEC

11 violated well established First Amendment jurisprudence when it interpreted and applied

12Arizona’s statutory definition of “expressly advocates” in such a way to effectively bring

13nearly all issue advocacy speech within its regulatory jurisdiction in clear contradiction of

14

Supreme Court precedent. In so doing, there is a question of whether the CCEC erred as a15

matter of law when it reversed the Administrative Law Judge’s (“ALJ”) interpretation of the16

17 law and the analysis of the facts.

18Next, did the CCEC improperly exercise jurisdiction when it sought to impose a

19penalty against LFAF under A.R.S. § 16-942(B) and declared jurisdiction over an entity

20other than a candidate. CCEC further emed by invoking the penalty—making provisions o:

21

A.R.S. § 16-942(B) without making the necessary determination of which candidate22

LFAF’s expenditure was “by or on behalf of’ and appropriately allocating the assessed23

24 penalty.

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324

Finally, because the CCEC’s violation of LFAF’s First Amendment rights gave rise

to this action, does the CCEC owe LEAF reasonable legal fees as a result of its actions as a

matter of law?

]

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3

4STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

5I. WHETHER THE CCEC EXCEEDED ITS STATUTORY

AUTHORITY IN ASSERTING JURISDICTION OVER LEAF AND

PURPORTED INDEPENDENT EXPENDITURES.6

7II. IF THE CCEC HAS JURISDICTION, WHETHER THE CCEC

ERRED WHEN IT MADE FINDINGS OF FACT AND LAW WHEN

IT WAS UNDISPUTED THAT, AT THE TIME LEAF RAN ITS

ADVERTISEMENT, THE ARIZONA SUPERIOR COURT HAD

RULED A.RS. § 16-901.01(A)’S DEFINITION OF ‘EXPRESSLY

ADVOCATES’ UNCONSTITUTIONAL.

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HI. IF THE CCEC HAD JURISDICTION AND THE DEFINITION WAS

ENFORCEABLE AT THE TIME LEAF SPOKE, WHETHER THE

CCEC VIOLATED THE FIRST AMENDMENT WHEN IT RELIED

ON SUBJECTIVE ANALYSIS IN FINDING LFAF’S

ADVERTISEMENT CONSTITUTED EXPRESS ADVOCACY.

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15IV. WHETHER THE CCEC ERRED, AS A MATTER OF LAW, BY

REVERSING THE INTERPRETATION OF THE LAW AISfD FACTS

OF THE ADMINISTRATIVE LAW JUDGE’S DECISION.16

17

V. WHETHER THE CCEC EXCEEDED ITS JURISDICTION AND

STATUTORY AUTHORITY WHEN IT IMPOSED CIVIL

PENALTIES AGAINST LEAF UNDER A.R.S. § 16-942(B).

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20VI. WHETHER THE CCEC’S ACTIONS, IN VIOLATING THE FIRST

AMENDMENT, SHOULD RESULT IN THE AWARD OF LEGAL FEES TO LEAF.

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23 STATEMENT OF THE CASE

24Plaintiff is an Iowa non-profit corporation, operating under Section 501(c)(4) of the

Internal Revenue Code. Defendant Citizens Clean Elections Commission (the25

425

Commission”) is an Arizona governmental entity established by the Citizens Clean

Elections Act (the “Act”), A.R.S. §§ 16-940, et seq., to impkmenUhe Act.

On July 1,2014 a complaint was filed with the Arizona Secretary of State and the

Commission claiming that Plaintiff had run an “express advocacy” television advertisement

(the “Subject Advertisement”) but had failed to file the necessary registration and campaign

finance disclosure forms with the Arizona Secretary of State and the Commission (the

Complaint Below”). Specifically, the Complaint Below alleged that Plaintiff violated

a

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A.R.S. §§ 16-914.02, -941(D) and -958(A)-(B).9

In response to the Complaint Below, Maricopa Count Elections (acting on the

request of the Secretary of State) dismissed the matter on July 21,2014. In response same

complaint, the Commission initiated its regulatory process and cormnenced proceedings

before the Commission (captioned In re Legacy Foundation Action Fund, numbered 15F-

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001-CCE).15

On July 18, 2014, LEAF commenced a Special Action in this Court challenging the

jurisdiction of the CCEC. On July 31,2014, the Commission declared it had jurisdiction to

consider the allegations of the Complaint Below. This court heard the Special Action and

on September 16,2014, granted the CCEC’s motion to dismiss finding that LFAF was

required to exliaust its administrative remedies before its claims would be heard.

On September 11, 2014, the Commission found “reason to believe” that a violation

of the Act occurred and authorized an investigation. The basis for the Commission’s

“reason to believe” finding was a conclusion that the Subject Advertisement was an

independent expenditure and that Plaintiff violated A.R.S. §§ 16-941(D) and -958 by failing

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526

to report those expenditures. On September 26,2014, the Commission issued a Compliance

Order along with written questions to be answered under oath verifying Plaintiffs spending

1

2

in Arizona.j

4 Plaintiff declined to answer the questions in a letter dated October 3,2014, claiming

that the Commission’s inquiries were not relevant to the Complaint Below, the Commission

had no authority to ask about Plaintiffs spending in Arizona, and was without authority to

5

6

7impose penalties.

On November 20,2014, the Commission found probable cause to believe Plaintiff

8

9

lad violated the Act and authorized the assessment of $95,460 in penalties. On November10

11 28,2014, the Commission issued an order assessing civil penalties against Plaintiff (the

12“Order”) and a Notice of Appealable Agency Action.

Plaintiff appealed the Commission’s Order by requesting an administrative hearing,

which was conducted by the Office of Administrative Hearings on January 28,2015. On

March 4,2015, Administrative Law Judge Thomas Shedden entered his Decision (the

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“ALJ’s Decision”) and concluded, in part, that: (a) Plaintiffs Subject Advertisement does

not constitute “express advocacy”; and (b) the Commission’s assessment of civil penalties

did not comply with A.R.S. § 16-942(B). The ALJ’s Decision, therefore, ordered that

Plaintiffs appeal should be sustained and the Commission’s Order was rescinded.

The Commission, however, rejected the ALJ’s Decision and rendered a Final

Administrative Decision dated March 27,2015, which declared: (a) the Commission has

jurisdiction and authority to enforce violations of the Act; (b) the Subject Advertisement is

express advocacy” within the definition of A.R.S. §16-901.01(A)(2); and (c) tlie

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25if.

6 27

Commission has authority to impose civil penalties against Plaintiff under A.R.S. § 16-1

942(B) (the “Decision”).2

In the Decision, the Commission reinstated its civil penalty of $95,460 against3

4 Plaintiff. This Notice of Appeal and Complaint for Judicial Review of Administrative

Decision (the “Complaint”) constitutes a Notice of Appeal of the Commission’s Decision.

Jurisdiction is appropriate in this Court to hear and determine this Complaint and to

grant the requested relief by virtue of A.R.S. § 12-905(A) for the reason that this action is a

review of a final administrative action authorized under A.R.S. §§12-901 et seq. and the

5

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7

8

9

10 Arizona Rules of Procedure for Judicial Review of Administrative Decisions.

11 Venue for this action is proper in the Superior Court of Maricopa County for the

reason that the proceeding culminating in the Decision was conducted in this County.12

13

14 STATEMENT OF THE FACTS RELEVANT TO THE ISSUES PRESENTED FORREVIEW15

LEAF is a tax-exempt, nonprofit, social welfare organization organized under16

17 Internal Revenue Code Section 501(c)(4). Index of Record on Review (“I.R.”) 13 at ^ 1.

18 Since its inception in 2011, LFAF has maintained a primary purpose to further tire common

good and general welfare of the citizens of the United States by educating the public on

public policy issues including state fiscal and tax policy, the creation of an entrepreneurial

environment, education, labor-management relations, citizenship, civil rights, and

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government transparency issues. Id.

Over the past four years, LFAF has run many issue advocacy advertisements in

different mediums. Being familiar with the First Amendment protections afforded to issue

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advocacy speech, LFAF ran a television advertisement in late March and early April of

2014 in Arizona referencing policy positions supported by the U.S. Conference of Mayors

and its President, then-Mesa Mayor Scott Smith. Id. at * 9. LFAF’s Arizona advertisement

was a part of a larger campaign regarding the U.S. Conference of Mayors as evidenced by

advertisements airing not only in Mesa, AZ but also in Baltimore, MD and Sacramento, CA.

Id. at ^ 9; Exhibit 4 thereto (I.R. 24).

The Arizona advertisement ran between March 31 and April 14,2014, and discussed

the U.S. Conference of Mayors’ policy positions regarding the enviromnent, Second

Amendment, tax and spending, and federal budget. I.R. 13 at % 14; Exhibit 6 thereto (I.R.

26). Consistent with LFAF’s mission and tax-exempt purpose, the advertisement provided

viewers with a call to action to contact Mayor Smith to tell him “The U.S. Conference of

Mayors should support policies that are good for Mesa.” Id.

Several months before LFAF aired this advertisement, Arizona’s statutory definition

of “expressly advocates” had been declai'ed unconstitutional by the Maricopa County

Superior Court. I.R. 13 at*| 8.

Over two and a half months after LFAF’s advertisement was last broadcast, Mr.

Kory Langhofer, a lawyer representing Mr. Smith, filed a complaint against LFAF, amongst

other parties, alleging that LFAF’s advertisement constituted express advocacy, thereby

subjecting LFAF to the registration and reporting requirements of both Articles 1 and 2 of

Title 16 Chapter 2 of the Arizona Revised Statutes. Id. at %% 25-26. Mr. Langhofer filed his

complaint with the CCEC as well as with the Aiizona Secretary of State’s Office. Id. at

25. On .July 16,2014, LFAF filed its response to the complaint with the CCEC, arguing the

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CCEC did not have jurisdiction over the matter and, even if it did, LFAF was not subject to1

registration or reporting requirements because its advertisement did not “expressly

advocate” as the then-unconstitutional provision defined the term.' Id. at 30; Exhibit 10

2

3

4 thereto (I.R. 30).

5The Arizona Secretaiy of State’s Office referred the complaint to the Maricopa

6County Elections Department (the “Department”). I.R. 13 at ^ 27. On July 21,2014, Jeffrey

7Messing, a lawyer representing the Department, issued a letter indicating that the8

Department “does not have reasonable cause to believe that a violation of Arizona Revised9

10 Statutes A.R.S. § 16-901.01 etseq. has occurred.” Id. atf 28; Exhibit 8 thereto (I.R. 28).

11 On July 31,2014, the CCEC held a public meeting and discussed, as an agenda item.

12the complaint against LFAF. I.R. 13 at f 30. At that hearing the CCEC decided not to make

13a finding whether it had reason to believe a violation occurred, but instead limited its

14

determination to declaring jurisdiction over the matter. Id. at f 33; Exhibit 15 thereto (I.R.15

34). Over a month later, on September 11, 2014, the CCEC revisited the issue and declared16

17 it had reason to believe that LFAF violated the Act and ordered an investigation. I.R. 13 at f

1835; Exhibit 17 thereto (I.R. 17). On September 26,2014, the CCEC sent LFAF a

19Compliance Order asking LFAF to provide written answers to the following questions

20under oath:

21

221 At the time LFAF produced and aired the Arizona advertisement, the Arizona Superior Court had ruled A.R.S. § 16- 901.01(A) unconstitutional. Committee for Justice & Fairne.ss v. Arizona Secretary ofState.'Ho. LC-2011-000734. Therefore, as argued infra, the CCEC could not enforce this unconstitutional statute defining “expressly advocates” against LFAF. The express advocacy definition in A.R.S. § 16-901.01(A) has been ruled unconstitutional by the Arizona Superior Court on November 28,2012, overturned by the Arizona Court of Appeals on August 7,2014, and review was denied by the Arizona Supreme Court on April 21,2015. LFAF believes that § 16-901.01(A) is unconstitutional and was pennitted by the appellants and appellees in the appellate case to submit an amicus curiae brief arguing that the statute is unconstitutional.

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930

1. Please provide how much money was expended to create and

run the television advertisement identified in the Compliance

Order.

1

2

3 2. Please identify any other advertisements pertaining to Scott Smith that ran in Arizona.

43. With regard to any advertisements identified in LFAF’s

response to question 2, please provide information on the scope

of the purchase, including how much money was spent to

create and run any such advertisements and where they ran.

5

6

7I.R. 13 at^ 36; Exhibit 18 thereto (I.R. 18). LFAF responded to the CCEC’s Compliance8

Order by letter arguing that the CCEC’s request for additional information was not only-

irrelevant to the matter at hand because it exceeded the scope of the original complaint, but

was also outside the scope of the CCEC’s jurisdiction. I.R. 13; Exhibit 19 thereto (I.R. 39).

Further, LFAF provided a detailed request to the CCEC in its response, asking the CCEC,

when assessing civil penalties under A.R.S. § 16-942(B), to identify the candidate the

advertisement was “by or on behalf of’ and which candidate or candidate’s campaign

account shall be “jointly and severally liable” for any civil penalty assessment. I.R. 13;

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17 Exhibits 19-20 thereto (I.R. 39-40).

18At its November 20,2014 public meeting, the CCEC found probable cause to

believe LFAF violated the Clean Elections Act I.R. 13 at f 41; Exhibit 25 thereto (I.R. 46).

On November 28, 2014 the CCEC issued its “Order and Notice of Appealable Agency

Action” in which it deemed LFAF’s Arizona advertisement to be express advocacy and

assessed a penalty against LFAF in the amount of $95,460. I.R. 13 at f 43; Exhibit 26

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24 thereto (I.R. 47).

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1031

LFAF filed its request for an administrative hearing timely on December 1,2014.1

I.R. 13 at f 44; Exhibit 27 thereto (I.R. 48). A hearing before ALJ Thomas Shedden took2

place on January 28,2015. The ALJ issued his opinion on March 4,2015 sustaining

LFAF’s appeal of the CCEC decision, and ordering the CCEC decision rescinded.

3

4

5Administrative Law Judge Decision, No. 15F-001-CCE (March 4,2015) (hereinafter “ALJ

6Decision”). I.R. 54. The ALJ concluded that the LFAF advertisement can reasonably be

seen as permissible issue advocacy and does not constitute express advocacy and is not

subject to civil penalties under A.R.S. § 16-942(B). Id. at ^ 22. The ALJ further concluded

that, even if the advertisement was an independent expenditure subject to reporting

requirements, the Order of the CCEC was improperly issued because it did not hold a

candidate’s campaign account jointly and severally liable. Id. at f 23. On March 27,2015,

the CCEC rejected the ALJ’s recommendations and entered a Final Administrative Decision

7

8

9

10

11

12

13

14

stating that the Advertisement constituted express advocacy subject to CCEC registration

and reporting requirements, and sent it to LFAF’s counsel by electronic mail.^ I.R. 55.

LFAF timely filed this Notice of Appeal of April 14,2015.

15

16

17

18ARGUMENT

19I. WHETHER THE CCEC EXCEEDED ITS STATUTORY

AUTHORITY IN ASSERTING JURISDICTION OVERLEAF ANDPURPORTED INDEPENDENT EXPENDITURES.

20

21

The CCEC’s jurisdiction is limited by A.R.S. Title 16, Chapter 6, Article 2, which is

delineated in the Act at A.R.S. §§ 16-940 to 16-961. In fact, A.R.S. §§ 16-956(A)(7) and

22

23

24

25 ■ See Opposition for Motion to Dismiss for additional aiguments about the fonnal sei-vice of the opinion and applicable statutes governing judicial review.

1132

16-957(A), explicitly limit tlie reach of the Commission to enforcing “this article” (Title 16.

Chapter 6, Article 2).

1

2

3 The CCEC’s declaration of jiiiisdiction through the independent expenditure

reporting requirements outlined in A.R.S. § 16-941(D) is misguided as the statute’s purpose

in Article 2 is no longer relevant. The independent expenditure reporting requirements

found in A.R.S. Title 16, Chapter 6, Article 2 were implemented to provide the CCEC

means to track independent expenditure spending so that it would be able to subsidize

participating candidates for such expenditures.^ See Arizona Enterprise Club’s Freedom

Club FAC V. Bennett, 131 S. Ct. 2806, 2828-29 (2011). The U.S. Supreme Court struck

down, as unconstitutional, the Clean Elections Act’s provision establishing the basis for

expenditure reporting before the CCEC. See Bennett, 131 S. Ct. at 2828-29 (ruling the Clean

Elections Act’s independent expenditure matching funds provision unconstitutional). In

effect, the Supreme Court’s ruling abolished the purpose for which the Clean Elections Act

imposed the requirement that the Secretary of State provide independent expenditure

information to the CCEC. See McComish v. Brewer, 2010 U.S. Dist. LEXIS 4931 (D. Ariz.

Jan. 20, 2010) (describing the operation of the Clean Elections Act, “The participating

candidate will also receive matching contributions if there are independent expenditures

against the participating candidate or in favor of the non-participating opponent.”) (internal

quotations omitted). See also. McComish v. Bennett, 611 F. 3d510, 516 (9th Cir. 2010) (“If

4

5

6a7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23■’ The Citizens Clean Elections Act provided for subsidies to candidates choosing to opt-in to the statute’s public financing provisions. As originally adopted, but later declared unconstitutional, such candidates were given subsidies from the state for independent expenditures run against such candidates. To track these expenditures, the Citizens Clean Elections Act provided a registration and reporting mechanism (in addition to the one already existing under Title 16, Chapter 6, Article 1) for the CCEC. Because such puipose is no longer constitutional, such a duplicative registration and reporting requirement exceeds CCEC’s statutoiy' authority.

24

25

1233

the participating candidate has a nonparticipating opponent . . . whose expenditures1

combined with the value of independent expenditures . . . exceed the amount of her or his2

initial grant, the participating candidate will receive matching funds . . . .”) (emphasis

4 added) (internal quotations omitted). As recognized by these courts, the sole reason why the

5Clean Elections Act provided that the Secretary of State infonnation about independeni

6expenditures to the CCEC was to track the amount of independent expenditure money spent

7so that participating candidates could be subsidized in accordance with the Clean Elections8

Act’s provisions.9

10 As the penalty provisions of Article 2 make clear, the CCEC’s jurisdiction extends

11 only to expenditures “by or on behalf of any candidate.” A.R.S. § 16-942(B). Because

12LEAF is not a candidate, and the CCEC dismissed allegations that LEAF’S speech was

13made in coordination with a candidate, the CCEC has no jurisdiction over LEAF’S speech.

14

As a result, the CCEC is without a legal foothold to assert jurisdiction over the15

independent expenditure reporting requirements after the United States Supreme Court held16

17 that scheme to be unconstitutional in Bennett. Bennett, 131 S. Ct. at 2828-29 (“the whole

18point of the First Amendment is to protect speakers against unjustified govemmeni

19restrictions on speech, even when those restrictions reflect the will of the majority,”),

20Because independent expenditures are already subject to registration and reporting

21

requirements in Article 1, which are enforced by the Arizona Secretary of State, Article 2’s22

requirements are duplicative and any attempt to make such requirements applicable, through23

24 rulemaking or otherwise, impermissibly deviates from the statute’s original intent and

25

1334

purpose, and is the result of an agency seeking to expand its jurisdiction/

administrative agencies derive their powers from their enabling legislation, their authority

“Because1

2

3 cannot exceed that granted by the legislature” (or, in the case of the Clean Elections Act, the

4 people who voted for the law). Pima County v. Pima County Law Enforcement Merit5

System Council, 211 Ariz. 224, 227, 119 P. 3d 1027, 1030, (2005). In fact, during the6

administrative review phase of this matter, the ALJ reiterated that CCEC has authority to7

enforce the provisions of Article 2, [l.R. 54 at ^ 12], which were passed into law by the8

voters of Arizona. It simply cannot be the case, however, that citizens of Arizona intended9

10 for two different governmental agencies to possess the ability to reasonably interpret the

11same exact law and thus create the possibility of inconsistent outcomes in the context of

12potential civil violations.

13In any event, enforcement of independent expenditure reporting rests with the

14

Secretary of State, which declined to take action on the complaint filed with that office in15

this matter. Upon referral by the Arizona Secretary of State’s Office, the lawyer16

17 representing the Maricopa County Elections Department found no reasonable cause to

18believe that a violation of Title 16, Chapter 6, Article 1 occurred. l.R. 13 at ^ 38; Exhibit 8

19thereto (l.R. 28). In other words, after review of the very same complaint at issue here, the

20Maricopa County Elections Department determined unequivocally that LFAF’s

21

advertisement did not constitute express advocacy under A.R.S. § 16-901.01 and was.22

23 therefore, not subject to independent expenditure registration and reporting requirements. Id.

24As evidence of the CCEC’s attempt to provide itself broader authority, the CCEC, in the summer and fall of 2013,

implemented new regulations giving the CCEC authority beyond that which is contained in the text of the Citizens Clean Elections Act. See Ariz. Admin Reg./Secretary of State. Vol. 19 Issue 45 (Nov. 8,2013).

25

1435

The Maricopa County Elections Department’s decision, acting on the request of the Arizona1

Secretary of State, renders the CCEC’s attempt to apply Section 16-941(D) to LEAF

meritless and without legal authority.^

2

3

4 As a result, the CCEC is simply without jurisdiction over LEAF in this instance

5because LEAF is not a candidate, did not coordinate its speech with any candidate, and

6because the enforcement of any independent expenditure requirements rests solely with the

7Secretary of State’s office, which declined to take action here.8

IF THE CCEC HAS JURISDICTION, WHETHER THE CCEC

ERRED WHEN IT MADE FINDINGS OF FACT AND LAW WHEN

IT WAS UNDISPUTED THAT, AT THE TIME LEAF RAN ITS

ADVERTISEMENT, THE ARIZONA SUPERIOR COURT HAD

RULED A.RS. § 16-901.01(A)’S DEFINITION OF ‘EXPRESSLY

ADVOCATES’ UNCONSTITUTIONAL.

II.9

10

11

12

On November 28, 2012, well before LEAF aired its advertisement, the Superior13

14 Court entered its “Final Judgment” in Committee for Justice & Fairness v. Arizona15

Secretary ofState’s Office, No. LC2011-000734-001 (“CJF’). I.R. 13 at ^ 8. In its ruling,16

the Superior Court declared as unconstitutional, A.RS. § 16-901.01, the statute defining17

expressly advocates.” Id. While the Secretary of State appealed the Superior Court’s18

decision, a stay was not granted, nor was any other type of legal action imposed thai19

20 suspended or reversed the Superior Court’s ruling. The CCEC entertained discussion as to

21 the effect of the Superior Court’s ruling at its November 20, 2014 open meeting and

22^ It is a severe burden on First Amendment rights afforded to issue advocacy speakers in Arizona to have to expend money and resources fighting legal challenges before two separate agencies that may, as tlrey have in this case, render two veiy different inteipretations of the very same statutoiy provision. These complicated procedures most certainly chill speech by making any attempt to exert one’s First Amendment right to air an issue advertisement prohibitively unpredictable and potentially costly, a result the U.S. Supreme Court explicitly cautions against. “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory nrlings before discussing the most salient political issues of our day.” Citizens United v. Fed. Election Comm % 558 U.S. 310,324 (2010).

23

24

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1536

admitted the Superior Court’s ruling controlled at the time LFAF aired its advertisement,1

I.R. 13; Exhibit 25 thereto (I.R. 46) at 39:5-40:8 and 57:22-58:22, (attempting to diminish2

the effect of the Superior Court’s ruling by refening to it as a “minute entry”). It is LFAF’s3

4 position, supported by federal case law, that the Executive Branch of the Arizona

5government, including the CCEC, was bound by the declaratory ruling in CJF because the

6Arizona Secretary of State’s Office was a party to the case.

7While LFAF believed at the time, and continues to believe and assert before this8

court, that its advertisement communicated a legitimate issue advocacy message, it aired its9

10 advertisement knowing that an Arizona court of competent jm-isdiction deemed Arizona’s

11 statutory definition of “expressly advocates” to be unconstitutional. The U.S. Supreme

12Court recognized that unconstitutional laws are unenforceable against those who act in

13reliance on the law’s status by establishing the void ab initio doctrine, which Justice Field

14

described in Norton v. Shelby~ County. “An unconstitutional statute is not law; it confers no15

rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal16

17 contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County.18

118 U.S. 425, 442 (1886). While the U.S. Supreme Court’s direct application of the void ab19

initio doctrine has been softened through the years to accommodate those who become20

unjustly effected by the retroactive application of an unconstitutional law, the general21

premise and legal doctrine holds tme today for those who reasonably act in reliance on a22

23 law’s status as being unconstitutional. See Beatty v. Metropolitan St. Louis Sewer Dist,

24 914 S.W.2d 791, 794 (Mo.S.Ct. 1995) (citing Norton, at 442) (“The modem view,

25

1637

however, rejects this rule to the extent that it causes injustice to persons who have acted

in good faith and reasonable reliance upon a statute later held unconstitutional”)-

Additionally, federal courts have recognized “that a federal judgment, later reversed

or found erroneous, is a defense to a federal prosecution for acts committed while the

judgment was in effect.” Clarke v. United States, 915 F.2d 699, 702 (D.C. Cir. 1990) (en

banc) (quotation marks omitted) (decision based on mootness). This finding is rooted in

the notion that legitimate reliance on an official interpretation of the law is a defense. See

United States v. Brady, 710 F.Supp. 290, 294 (D.Colo.l989) citing United States

Durrani, 835 F.2d 410, 422 (2d Cir. 1987); United States v. Duggan, 743 F.2d 59, 83 (2d

Cir. 1984) (although there are few exceptions to the rule that ignorance of the law is no

excuse, there “is an exception for legitimate reliance on official interpretation of the

The doctrine is applied most often when an individual acts in reliance on a

1

2

3

4

5

6

7

8

9 V.

10

11

12

13law.”). ii.

14

statute or an express decision by a competent court of general jurisdiction . . .” Unitea15

States V. Albertini, 830 F.2d 985, 989 (9th Cir. 1987); United States v. Moore, 586 F.2d16

17 1029, 1033 (4th Cir. 1978) (“Of course, one ought not be punished if one reasonably

relies on a judicial decision later held to have been erroneous”).

By parallel analogy, the CCEC is, in this instance, attempting to enforce a state

law that had been declared by a court of competent jurisdiction with power over the

CCEC to be unconstitutional at the time LEAF acted. It was not until several weeks after

the CCEC decided to pursue this matter, and several months after LFAF’s advertisements

18

19

20

21

22

23

24 aired, that the Court of Appeals reversed the judgment of the trial court. Comm. For25

Justice & Fairness (CJF) v. Art. Secy. Of State's Office, 235 Ariz. 347, 332 P.3d 94

1738

(App. 2014).^ In fact, the CCEC’s position appeared to be that it was LFAF's ‘‘burdeiF’

to demonstrate how a valid declaratory judgment of the Maricopa County Superior Court

1

2

was in fact “binding” on the CCEC. See LR. 13; Exhibit 25 thereto (I.R. 46) at 58:9-20.3

4 It is undisputed that A.R.S. § 16-901.01 was considered unconstitutional by the

5Maricopa County Superior Court at the time LFAF aired its advertisement. CCEC,

6therefore, cannot enforce the statute’s express advocacy reporting requirements upon LFAF

7as doing so would violate the legal doctrine of void ab initio and the constitutional due8

process requirements of not pennitting an agency to enforce an unconstitutional law. The9

10 Arizona Secretary of State’s office is in fact following this doctrine in a similar case where a

11 federal court has declared the State’s definition of “political committee” to be so vague as to

12be unenforceable. Galassini v. Town of Fountain Hills, 2014 U.S. Dist. LEXIS 168772

13(D. Ariz. Dec. 4, 2014); see also “Galassini Impact on Campaign Finance Law” (“Om

14

office is currently not enforcing the compliance provisions of campaign finance law due15

to the district court order.”) available at http://www.azsos.gov/cfs/Galassini.htm (visited16

17 December 27, 2014).

18The CCEC’s position is strikingly different from that of the Secretary' of Slate and

19is a position that cannot be upheld.

20

21

22

23

24 ^ A Petition for Review of tlie CJF decision was pending before the Arizona Supreme Court at the time this appeal was filed. Committee for Justice & Fairness v. Arizona Secretary of State, CV-14-0250-PR(Ariz.S.Ct.). On April 21,2015, the Arizona Supreme Court declined review of the decision of the Court of Appeals in that matter without forther comment.

25

1839

http://www.azsos.gov/cfs/Galassini.htm

III. IF THE CCEC HAD JURISDICTION AND THE DEFINITION WAS

ENFORCEABLE AT THE TIME LEAF SPOKE, WHETHER THE

CCEC VIOLATED THE FIRST AMENDMENT WHEN IT RELIED

ON SUBJECTIVE ANALYSIS IN FINDING LEAF’S

ADVERTISEMENT CONSTITUTED EXPRESS ADVOCACY.

1

2

3

4 Longstanding First Amendment jurispmdence requires a court to apply an objective

5standard when assessing whether speech constitutes the functional equivalent of express

6advocacy. See Citizens United at 558 U.S. at 324-325, (citing WRTL at 474 n.7 (noting 'the

7functional-equivalent test is objective: [A] court should find that [a communication] is the8

functional equivalent of express advocacy only if it is susceptible of no reasonable9

10 interpretation other than as an appeal to vote for or against a specific candidate.”) (internal

11 quotations omitted)). If the Arizona statutory definition allows for a subjective analysis ol

12context, then this statute has to be unconstitutional following the Supreme Court decisions

13in Citizens United and WRTL.

14

The U.S. Supreme Court has held that only express advocacy or its functiona15

equivalent is subject to regulation through campaign finance laws. See McConnell v. FEC.16

17 540 U.S. at 93, 105 (2003); Buckley v. Valeo, 424 U.S. 1, 43-44 (1976) (per curiam). In

18 Buckley, the Supreme Court emphasized the unique nature of “explicit words of advocacy19

of election or defeat of a candidate.” Buckley, 424 U.S. at 43 (finding the following words20

constituted express advocacy: “vote for, elect, support, cast your ballot for, Smith for21

Congress, vote against, defeat, rejecf’).22

23 Buckley’s “magic words” test had been upheld in courts throughout the country unti!

24 recently when the Ninth Circuit expanded the definition to include not only communications

25containing magic words, but also communications when read in total, and with limited

1940

reference to external events, are susceptible of “[n]o other reasonable interpretation but as1

an exhortation to vote for or against a specific candidate.” FEC v. Furgatch, 807 F.2d 857.2

864 (9th Cir. 1987). A later Ninth Circuit opinion clarified and narrowed Furgatch b>3

4 noting when interpreting express advocacy, the Ninth Circuit presumes express advocacy

5must contain some explicit words of advocacy.” California Pro-Life Counsel v. Getman

6328 F.3d 1088, 1098 (9th Cir. 2003); Furgatch, 807 F.2d. at 864 (“context carmot supply a

7meaning that is incompatible with, or simply unrelated to, the clear import of the words”).8

While express advocacy may not be limited to “circumstances where an advertisement only9

10 uses so-called magic words ....” Supreme Court precedent explicitly confines the contours

11 of express advocacy to protect the speaker’s legitimate right to engage in issue advocacy

12speech. Getman and Furgatch demonstrate that the most expansive definition of express

13advocacy requires that speech only qualifies as express advocacy if it “[p]resents a cleai

14

plea for action, and thus speech that is merely informative is not covered by the Act.’15

Furgatch, 807 F.2d. at 864.16

17 The CCEC erred in its analysis of LFAF’s advertisement by failing to apply an

18objective standard. See WRTL, 551 U.S. at 470 (requiring a standard that “focus[es] on the

19substance of the communication rather than amorphous considerations of intent and

20effect.”). In rendering its decision, the CCEC overlooked two critical components oi

21

LFAF’s advertisement. First, LFAF’s advertisement did not proffer a clear plea for action22

in conjunction with Mr. Smith’s campaign for Arizona Governor. Second, the substance o;23

24 LFAF’s advertisement, when viewed through an objective lens, shows that it was: (i)

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2041

targeted to effectuate a legitimate issue advocacy message, and (ii) part of a broad issue1

advocacy campaign.2

3 LFAF’s Advertisement Lacks A Clear Plea For ActionA.

4 Because LFAF’s advertisement lacks a clear plea for action, the CCEC erred when it

5ruled that the advertisement constituted the functional equivalent of express advocacy.

6contrary to well established U.S. Supreme Court precedent. Such a reading of the

7advertisement required the CCEC to exert a subjective, intent-based analysis of the facts; a8

chore that flies directly in the face of Chief Justice Roberts and the Supreme Court in9

10 WRTL. See WRTL 551 U.S. at 467 (declining to adopt a test “turning on the speaker’s intem

11 to affect the election.”).

12At the heart of the CCEC’s decision is its reliance on the CCEC Executive Director’s

13Probable Cause Recommendation (“Recommendation”) presented to the Commission by

14

Tom Collins, CCEC’s Executive Director. Instead of applying an objective analysis of the15

facts, the Recommendation veils its findings in subjective, intent-based assertions. The16

17 instances are numerous and appear frequently throughout the Recommendation. On page 6

18and continuing on to page 7 of the Recommendation, it suggests that LFAF’s advertisemeni

19is meant to carry a message that sways Republican primary voters. I.R. 13; Exliibit 21

20thereto (I.R. 41) at pp. 6-7. On page 10, the Recommendation states “the advertisemeni

21

places Mr. Smith in a negative light with Republican primary voters.” Id. at p. 10. Absent22

23 from the Recommendation, however, is objective evidence of such an impact. The basis for

24 the Recommendation’s statements are even more mysterious when considering the fact that

25Arizona does not have closed primaries, which leads one to believe that the advertisemeni

2142

most certainly may have been interpreted differently by different primary election voters1

Republicans, Independents and those who register without a party preference.2

Furthermore, the CCEC on multiple occasions pressed to discern the intent behind

4 LEAF’S advertisement through questioning during is public meetings. See I.R. 13; Exliibil

514 thereto (I.R. 34) at 58:10-59:4), Exhibit 17 thereto (I.R. 37) at 22:9-23:16; Exhibit 25

6thereto (I.R. 46) at 29:14-34:25). Instead of focusing on the four comers of the ad itself, the

7CCEC obscured and confused the ad’s meaning with contextual and intent-based rhetoric,8

While context may be considered when determining whether an advertisement constitutes9

10 the functional equivalent of express advocacy, the U.S. Supreme Court does not support the

11CCEC’s considerable reliance on contextual considerations. See WRTL 551 U.S. at 473-

12474. In fact, the Supreme Court concluded that contextual considerations “should seldom

13play a significant role” in determining whether speech is express advocacy. WRTL, 551 U.S.

14

at 473-474. While “basic background infomiation that may be necessary to put an ad in15

contexf ’ may be considered, the Court noted that courts should not allow basic background16

17 information to “become an excuse for discovery.” Id.18

Thus, the Recommendation’s argument, which was relied upon by the CCEC, thal19

the advertisement’s call to action “is belied by the context of the advertisemenf’ in that the20

advertisement does not relate to pending legislation in the City of Mesa, runs counter to21

Supreme Court precedent. I.R. 13; Exhibit 21 thereto (I.R. 41) at p. 9. The reality of the22

23 matter is that the federal policy issues mentioned in the advertisement (environment:

24 healthcare; the Second Amendment; and the Federal Budget) are relevant issues of national

25importance. It is this factual reality that led the ALT to conclude that “a communication

2243

expressly advocates only if there can be 'no reasonable meaning other than to advocate the1

I.R. 54 at^ 16 (citing A.R.S. § 16-901.01(A)(2)).election or defeat of the candidate. 999

2

References throughout the Recommendation, as well as comments made during3

4 public Commission meetings, assume that statements affixed to policy positions of the U.S.

Conference of Mayors were purposed to undermine Mayor Smith’s efforts to be elected as5

6governor. See I.R. 13; Exhibit 25 thereto (I.R. 46, 40:10-20, 44:4-16, 48:3-50:2). The

7reality is that Mayor Smith held the highest position within the U.S. Conference of Mayors

and bore the burden of being associated with the issues of public importance promulgated

by the Conference. In many ways, the federal public policy issues addressed in LFAF’s

8

9

10

11 advertisement constituted matters of greater importance than Mayor Smith’s personal

12ambitions for higher office. Under the CCEC’s analysis, there can be no such thing as a

13genuine issue advertisement when that ad mentions an individual who haf>pens to be a

candidate for public office at anytime before an election (even five months) even in cases

where that candidate maintains a public position and the ad articulates a clear policy

statement. Chief Justice Roberts dismissed such an attempt outright in saying,

14

15

16

17

18 [t]his “heads I win,” “tails you lose” approach cannot be

correct. It would effectively eliminate First Amendment protection for genuine issue ads, contrary to our conclusion in

WRTL I that as-applied challenges to § 203 are available, and

our assumption in McConnell that “the interests that justify the

regulation of campaign speech might not apply to the regulation

of genuine issue ads.

19

20

2199

22

WRTL, 551 U.S. at 471 (citmg McConnell 540 U.S. at 206).23

24

25

2344

WHETHER THE CCEC ERRED, AS A MATTER OF LAW, BY

REVERSING THE INTERPRETATION OF THE LAW AND FACTS

OF THE ADMINISTRATIVE LAW JUDGE’S DECISION.

IV.I

2

Arizona defines express advocacy to mean only those communications that explicitly3

4 urge the election or defeat of a particular candidate or that '■‘in context can have no

reasonable meaning other than to advocate the election or defeat of the candidate(s), as

evidenced by factors such as the presentation of the candidate(s) in a favorable or

5

6

7unfavorable light, the targeting, placement or timing of the communication or the inclusion

of statements of the candidate(s) or opponents.” A.R.S. § 16-901.01(A).

When objectively analyzed, LFAF’s advertisement is seen for what it is, an issue

advocacy communication. A reasonable person reviewing the advertisement will notice that

there is no mention of any election whatsoever. First, the ad does not mention any

individual as a candidate for office. Second, the ad does not reference voting and certainly

8

9

10

11

12

13

14

does not mention any political party. Third, the unmistakable “call to action” is to “tell

Scott Smith, the US Conference of Mayors should support policies that are good for Mesa.”

15

16

This call to action addresses Mr. Smith in both his public roles as Mayor of Mesa and as17

18 President of the U.S. Conference of Mayors. It references policy initiatives tliat are

19highlighted earlier in the ad and are supported by the Conference. Therefore, a simple,

objective application of the factors proffered in Section 16-901.01 shows that LFAF’s

advertisement is genuine issue advocacy that has a reasonable meaning other than to defeat

Mr. Smith in the Arizona primary election. Reasonably viewed, the Advertisement calls on

20

21

22

23

24 the U.S. Conference of Mayors, through Mayor Smith, the organization’s president, to

25reform its policies.

2445

Under such an objective analysis, the ALJ agreed with LFAF that the advertisement

is reasonably seen to be issue advocacy. I.R. 54 at f 16 (“The Subject Advertisement

reasonably be seen as pemiissible issue advocacy based on factors such as the content of the

communications; that they were aired at a time in which Mr. Smith was still the mayor of

Mesa and the President of the Conference; . . . they were aired about four and one-hall

months before early voting started in the Republican Primary, ... and voting was not

limited to registered Republicans.”)

1

2 can

3

4

5

6

7

8

The ALJ’s finding is bolstered by the facts presented to the CCEC that comments

made by ordinary citizens in response to the ad provide a sharp contrast to what the CCEC

purports to be the purpose of the ad. These comments, posted to the Legacy Foundation

Action Fund’s YouTube channel, differ from the conclusion reached by the Maricopa

County Department of Elections referenced, supra. Some of the comments from ordinary

citizens include the following:

9

10

11

12

13

14

15

16 • I live in Chandler (the city boarding Mesa to the southwest) this

ad made me want to volunteer for Scott Smith Mayoral Campaign.17

18• Wow! Scott Smith is supportive of health care for everyone,

reducing pollution to stop global wanning and keep guns out of

the hands of lunatics? Sounds like a great mayor to me! Go Scott!

19

20

21• ... [Tjhis ad actually makes Mesa's Mayor, Scott Smith sound

wonderful. Mayor Smith supports great ideas that are

beneficial to common Americans ....22

23I.R. 5 at p. 17.24

25

2546

Therefore, while the CCEC claims that the advertisement can only have one1

“objective” meaning, the ALJ, as well as the public, disagreed. These comments and the9

conclusion of the Maricopa County Department of Elections demonstrate that there is more3

4 than one reasonable interpretation of the advertisement, thereby rendering CCEC’s ordei

5and assessed penalty in error.

6Without mere mention of the reasonable alternative interpretations highlighted

7above, the CCEC repeatedly suggested that the only reasonable meaning of the ad was to8

advocate the defeat of Mayor Smith. However, the CCEC in a biased fashion never9

10 appreciated LEAF’S larger mission, which required it to be critical of the policy positions

11 supported by the U.S. Conference of Mayors. Common sense dictates that when airing an

12advertisement that seeks to oppose the policy positions of an organization, it makes sense to

13identify tliose individuals responsible for the organization’s decision making. Mayor Smith,

at the time the advertisement aired, was the President of the U.S. Conference of Mayors and

therefore served as the figurehead of that organization.^ Whether Mr. Smith liked it or not.

14

15

16

17 when he assumed that role, he undertook the public persona of being responsible for the

18public positions and policies of the Conference. This holds true for past positions of the

19Conference as well. Therefore, the fact that the advertisement aired during the last two

20weeks of Mayor Smith’s term as mayor and President of the U.S. Conference of Mayors is

21

22

23’ LEAF’S advertisement at issue was not aired in isolation. As mentioned supra, LFAF attacked the policies of the U.S. Conference of Mayors by running advertisements mentioning other leaders in that organization in Sacramento, CA and Baltimore, MD. The CCEC finds fault in the amounts of money spent in these other cities, but this information is hardly relevant given that viewers of the Arizona advertisements would have to undertake substantial efforts to make such comparisons. '

24

25

2647

irrelevant since the language in the advertisement very clearly criticized the policy positions1

of the U.S. Conference of Mayors.2

LFAF’s Advertisement Was Targeted To Be Effective For Its

Issue Advocacy Purpose.3 1.

4LFAF’s advertisement ran in Mesa, AZ. However, a person looking to purchase5

television airtime in Mesa, AZ, cannot simply target its purchase to the city of Mesa6

7 Instead, because of the configuration of television stations and coverage areas, LFAF had to

8 purchase airthne in the Phoenix, AZ market. See I.R. 5; Exhibit A thereto; see also Exhibit

B thereto at p. 11 and I.R. 30 at p. 6. The Recommendation cited the fact that LFAF

targeted an audience greater than Mesa to suggest that such targeting was purposed to sway

voters rather than to address policy issues to Mr. Smith’s constituents. I.R. 41 at p. 6. Such

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an assertion is not taking into consideration the practical aspect of buying television airtime.

LFAF was forced to purchase its airtime in the Phoenix, AZ market, the nanwest market

available. This fact in no way takes away from the advertisement’s issue advocacy message.

To find otherwise would stifle protected First Amendment Free Speech rights in most any

situation where such precise targeting is made unfeasible at no fault of the speaker.

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LFAF’s Advertisement Was Part Of A Broad Issue Advocacy

Campaign.ii.19

20LFAF’s advertisement aired nearly five months before any election, a span of time

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great enough to vastly diminish any alleged influence the ad may have had on any election.

I.R. 13 at ^ 14. The timing, in terms of airing of an ad to the date of the election, proved

vital in many courts’ decisions, contrary to the Recommendation’s assertion otherwise. See

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25 WRTL, 551 U.S. at 472 (finding that eveiy ad covered by BCRA § 203 will by definition ah

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just before an election - specifically 30 days in advance of a primary or 60 days in advance

of a general election); Furgatch, 807 F.2d at 865 (finding it determinative tliat the

newspaper advertisement was run one week prior to the general election); Committee for

Justice & Fairness v. Arizona Secretary of State’s Office, 325 P.3d 94, 101, 102 (App.

2014) (noting the ad was aired within days of the election and immediately before the

election).

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7The CCEC failed to acknowledge the limitations of the reach of "'functional8

equivalenf ’ express advocacy definitions outside of the 30 and 60 day windows relative to

primary and general election dates approved by the Supreme Court in WRTL Both the

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11Recommendation and the CCEC emphasized that LFAF’s advertisement began airing after

Mr. Smith announced his candidacy for governor. The Recommendation suggests that tlie

CCEC should believe that Mr. Smith’s role as President of the U.S. Conference of Mayors

was not applicable or for some reason did not carry as much significance as Mr. Smith’s

newly-proclaimed role as candidate for governor. It is simply not the case that once Mr.

Smith announced his candidacy for governor he relinquished his roles as Mayor of Mesa or

President of the U.S. Conference of Mayors. In fact, Mr. Smith remained as Mayor of Mesa

and President of the U.S. Conference of Mayors until April 15, 2014, which was after

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20LFAF’s advertisement was last broadcast. Therefore, for Commissioner Hoffman to remark

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that‘T feel confident that it - that this ad would not have been run had [Mr. Smith] not22

23 announced a - gubernatorial campaign” shows just how shortsighted the Commission’s

24 analysis truly was and how focused the Commission was on its subjective analysis of its

perception of LFAF’s intent. I.R. 13; Exhibit 25 thereto (I.R. 46). This statement does not25

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consider LFAF’s organizational views and broader campaign to combat policieseven1

promulgated by the U.S. Conference of Mayors.

By focusing on the timing of LFAF’s advertisement relative to Mr. Smith’s

aimouncement of his candidacy rather than on the date of the election nearly five months

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5away, the CCEC turned a blind eye to established First Amendment jurisprudence. Undei

the CCEC’s analysis, a public official who announces his candidacy for another public

office camiot be the subject of an issue advocacy advertisement concerning actions taken by

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the public official during his tenure in his existing office. Such a standard does not support

the notion that “[sjpeech is an essential mechanism of democracy, for it is the means to hold

officials accountable to the people.” Citizens United v. FEC, 558 U.S. 310, 339 (2010).

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12WHETHER THE CCEC EXCEEDED ITS JURISDICTION AND

STATUTORY AUTHORITY WHEN IT IMPOSED CIVIL

PENALTIES AGAINST LEAF UNDER AR.S. § 16-942(B).

V.13

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The CCEC may not assess a penalty against LEAF because it has failed to identify15

the candidate the advertisement was “by or on behalf of’ and the “candidate or candidate’s16

17 campaign account” that shall be “jointly and severally liable” for any civil penalty

assessment. A.R.S. § 16-942(B). To assess a penalty solely against LEAF is to act in excess18

19of the CCEC’s jurisdiction.

20The CCEC relied on A.R.S. §16-957 as well as A.A.C. R2-20-109(F)(3) as its basis

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for asserting jurisdiction and applying a civil penalty against LEAF for delinquent

independent expenditure reports. I.R. 47. Both the statute and regulation point to A.R.S. §

16-942(B) as the sole means of assessing any civil penalty. However, the CCEC lacked the

jurisdiction to exact a civil penalty under A.R.S. § 16-942(B), or any other statute for that

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matter, because the statute’s enforcement provisions are clear in that they refer to candidates1

or organizations making expenditures “by or on behalf of any candidate.” A plain language2

reading of the statutory section below clearly illustrates this requirement,3

4 In addition to any other penalties imposed by law, the civil penalty for a violation by or on behalf of any candidate of any

reporting requirement imposed by this chapter shall be one

hundred dollars per day for candidates for the legislature and

three hundred dollars per day for candidates for statewide

office. The penalty imposed by this subsection shall be doubled

if the amount not reported for a particular election cycle

exceeds ten percent of the adjusted primary or general election

spending limit. No penalty imposed pursuant to this subsection

shall exceed twice the amount of expenditures or contributions

not reported. The candidate and the candidate's campaign

account shall be jointly and severally responsible for any

penalty imposed pursuant to this subsection.

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12A.R.S. § 16-942(B) (emphasis added). Before the CGEC is able to apply the statutory

13penalties provided in Section 16-942(B) to LFAF, it must: (1) identify the candidate for

14

which LFAF’s advertisement was “by or on behalf of,” and (2) hold that candidate and the15

candidate’s campaign jointly and severally responsible.16

17 The CCEC failed to identify the statutorily required candidate and attribute such to

18LFAF in light of its findings at its August 21, 2014 meeting as well as its November 20,

192014 meeting. At its August 21,2014 meeting, the Commission voted to find no reason to

believe that coordination between LFAF and Ducey 2014 Campaign existed.^ Then, during

its November 20,2014 meeting, commissioners engaged in a series of questions from which

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23 it was made clear the CCEC did and does not fully grasp the notion that legislative language

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25 ** At the time of the Commission’s consideration of this matter on July 31,2014, tliere were seven candidates for the Republican nomination for Governor, including now-Governor Ducey and Mayor Smith.

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cannot be superfluous. See I.R. 46 at 40:10-24 (“So, I don’t -1 don’t quite understand why

you’re saying a campaign has to be identified or who would benefit from.”).

The principles of statutory construction are grounded in the goal of giving effect to

the Legislature’s intent, or in the case of the Citizens Clean Elections Act, the people’s

intent. People’s Choice TV Corp. v. City of Tucson, 202 Ariz. 401,403, P7,46 P.3d 412,

414 (2012). It is only when the language of a statute is ambiguous that principles of

statutory construction are applied. Aros v. Beneficial Ariz., Inc., 194, Ariz. 62, 66,977 P2.d

784,788 (1999). If a statute is unambiguous, the statute is applied without applying such

principles. Id.-, see In the Matter of Joel Fox dba SCA, 2009 AZ Admin. Hearings LEXIS

1307,25-27 (holding “The County’s position is not consistent with principles of statutory

construction” when it interpreted statutory language to be inapplicable in contradiction to

legislative intent).

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A.R.S. § 16-942(B) is not ambiguous and, therefore, can only be applied to a15

candidate or an organization working “by or on behalf of’ a candidate. Because LEAF is16

17 certainly not a candidate and the CCEC already found LEAF not to be working on behalf of

(or even in coordination with) the Ducey 2014 Campaign or any other candidate committee,

the CCEC erred in applying Section 16-942(B) to levy a civil penalty against LEAF.

Even if the language were to be deemed ambiguous, application of principles of

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statutory construction suggest that the statutory language of “candidate” and “by or on

behalf of any candidate” have a meaning and purpose. The CCEC’s failure to consider

these mandatory statutory requirements requires that CCEC be prohibited from applying

this statutory civil penalty provision against LEAF. To allow the CCEC to distort the

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meaning of its own jurisdictional statute to expand its regulatory reach over a reporting1

requirement rendered unenforceable by the U.S. Supreme Court is to provide a means to2

circumvent the fundamental principles of statuary construction. See Janson ex rel. Janson v.3

4 Christensen, 167 Ariz. 470,471, 808 P. 2d 1222, 1223, (1991) (“Each word, phrase, clause.

5and sentence [of a statute must be given meaning so that no part will be void, inert.

6redundant, or trivial”).

7The ALJ concluded that, “[ujnder the CCEC’s interpretation, the statute’s sentence8

regarding joint and several responsibility would have no ejffect and would be given no9

10 meaning when assessing penalties for violations accruing under [the CCEC’s regulation]

11 and, in other cases, it would require adding a limitation to the statute that was not included

12by the voters.” I.R. 54 at ^ 20. The CCEC cannot simply concoct a different meaning for

13existing statutory language to make it applicable to organizations making communications

14

having no relation to candidates, as is the case here. “CCEC’s interpretation is contrary to15

the principles of statutory construction and the Order does not meet the requirements of16

17 Ariz. Rev. Stat. section 16-042(B).” I.R. 54 at *[121 (citing Guzman v. Guzman, 175 Ariz.

18183, 187, 854 P.2d 1169, 1173 (App. 1993); ondDarrah v. McClennen, 689 Ariz. Adv.

19Rep. 12, 337 P.3d 550 (App. 2014).

20The absence of any clearly applicable penalty provision also supports LFAF’s

21

argument, outlined supra, that the CCEC lacks jurisdiction over tins matter - both LFAF as22

an entity and over the speech in which LFAF engaged - in the first instance.23

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WHETHER THE CCEC’S ACTIONS, IN VIOLATING THE FIRST

AMENDMENT, SHOULD RESULT IN THE AWARD OF LEGAL

FEES TO LEAF.

VI.1

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Pursuant to Arizona law, LFAF should be awarded fees and other expenses resulting3

4 from the continued challenge of CCEC’s jurisdiction and enforcement action in this case.

5Arizona statutes provide, in pertinent part, that “[i]n addition to any costs that are

6awarded as prescribed by statute, a court shall award fees and other expenses to any paily

7other than this state ... that prevails by an adjudication on the merits in... a court8proceeding to review state agency action ....” A.R.S § 12-348(A)(2). For this purpose,

fees and other expenses” means “the reasonable expenses of expert witnesses, the

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11 reasonable cost of any study, analysis, engineering report, test or project which the court

12finds to be directly related to an necessary for the presentation of the party’s case and

13reasonable and necessary attorney fees, and in the case of an action to review an agency

14

decision pursuant to subsection A, paragraph 2 of this section, all fees and other expenses

that are incurred in the contested case proceedings in which the decision was rendered. ’’

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17 A.R.S. § 12-348(I)(1) (emphasis added).

18 The provision entitling LFAF to reasonable attorneys fees indicates that “the award

19of attorney fees may not exceed the amount that the prevailing party has paid or has agreed

20to pay the attorney or a maximum amount of seventy-five dollars per hour unless the court

21

determines that... a special factor, such as the limited availability of qualified attorneys22

for the proceeding involved, justifies a higher fee.'*' A.R.S. § 12-348(E)(2). LFAF asserts23

24 that CCEC’s enforcement action is precisely the type of First Amendment violation Chief

25Justice Roberts warned against in Citizens United: “The First Amendment does not pennit

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laws that force speakers to retain a campaign finance attorney, conduct demographic

marketing research, or seek declaratoiy rulings before discussing the most salient political

of our day.” 558 U.S. 310, 324 (2010). However, CCEC’s misplaced interpretation

of its jurisdiction and Arizona’s independent expenditure reporting regime has done just

that. As a result of the highly specialized ai*ea of First Amendment and campaign finance

actions, LFAF further submits that this action is ripe for the exercise of this court’s

discretion in exceeding the $75 per hour cap as is authorized by A.R.S. § 12-348(E)(2).

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8CONCLUSION9

The CCEC, even though it did not have jurisdiction over LFAF or its speech,

applied a subjective, intent based analysis to find LFAF’s advertisement constituted the

functional equivalent of express advocacy, a finding that runs counter to well established

U.S. Supreme Court precedent. LFAF acted in good faith reliance on the fact that Arizona’s

express advocacy statute had been ruled unconstitutional prior to and during the airing of

the advertisement.

To the extent there is any overlap between express advocacy and issue advocacy in

this matter, the Commission was required to “give the benefit of any doubt to protecting

rather than stifling speech.” WRTL, 551 U.S. at 469. Instead, the Commission actually

recognized that this analysis constituted a case of “grayness” but instead of following U.S.

Supreme Court precedent, it found that “this one is far enough in the gray zone that it was

express advocacy.” I.R. 46 at 59:13-14.

The CCEC’s Final Administrative Decision should be reversed. This court should

conclude that the CCEC exceeded its statutory authority in asserting jurisdiction over this

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matter (both in the person of LEAF and in the subject matter of the speech involved), thal

LEAF’S Ajizona advertisement was not express advocacy and therefore not subject to the

CCEC’s reporting requirements, and that the CCEC has no basis in fact or law for imposing

any civil penalty at all in this matter. This court should further award LEAF reasonable

expenses and attorneys fees adjusted appropriately for the highly-specialized questions ol

First Amendment law that CCEC’s enforcement action has given rise to.

DATED this '2lf\^Adav of May, 2015.

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Bergin, Frakes, Smalley & Oberholtzer, PLLC9

10Brian M. Bargin4455 East Cmelback Road, Suite A-205


A ttorneys for Petitioner/Appellant

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14 Holtzman Vogel Josefiak PLLC

rtf:- iT.15

Jason TorcHinskyC_y

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Attorneys for Petitioner/Appellant

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ORIGINAL of the foregoing filed this

_2U^day of May, 2015 at:19

20Office of Administrative Hearings

1400 West Washington, Suite 101


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And a COPY emailed/mailed this^^day of May, 2015 to :

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24Mary R. O’Grady

Osborn Maledon25

3556

2929 North Central Avenue

21^‘FloorPhoenix, Arizona 85012

Attorr^j forDefy^cM

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3657

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Brian M. Bergin, #016375 Bergin, Frakes, Smalley & Oberholtzer, PLLC 4343 East Camelback Road, Suite 210 Phoenix, Arizona 85018 Telephone: (602) 888-7857 Facsimile: (602) 888-7856 [email protected] Attorneys for Plaintiff

Jason Torchinsky Holtzman Vogel Josefiak PLLC 45 North Hill Drive, Suite 100 Warrenton, VA 20186 Telephone: (540) 341-8808 Facsimile: (540) 341-8809 [email protected] Co-Counsel for Plaintiff Admitted Pro Hac Vice


IN THE COUNTY OF MARICOPA

LEGACY FOUNDATION ACTION FUND, an Iowa non-profit corporation,

Plaintiff,

vs.

CITIZENS CLEAN ELECTIONS COMMISSION,

Defendant. CITIZENS CLEAN ELECTIONS COMMISSION,

Plaintiff,

vs.

LEGACY FOUNDATION ACTION FUND, an Iowa non-profit corporation,

Defendant.

Case No.: CV2018-004532 Case No.: CV2018-006031 (Consolidated)

DEFENDANT LEGACY FOUNDATION ACTION FUND’S

MOTION TO DISMISS FOR WANT OF JURISDICTION

(Assigned to the Honorable Christopher Whitten)

(Oral Argument Scheduled August 30, 2018 at 9:30 AM)

ITEM V- Legacy Motion to Dismiss CEC



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INTRODUCTION

From the very beginning, four years ago, the Citizens Clean Elections Commission

(“CCEC”) was without jurisdiction. CCEC has never had jurisdiction to pursue Legacy

Foundation Action Fund (“LFAF”) for its constitutionally-protected speech. Unfortunately, the

ensuing four years have resulted in a long circuitous road, beginning with the Secretary of

State’s Office, to the CCEC, to an Administrative Law Judge, back to the CCEC, then to the

Arizona courts, all the way to the Arizona Supreme Court. Now, years later, LFAF returns to

this Court with a clear question for this Court to answer:1 Can CCEC enforce a penalty on

LFAF for its speech when CCEC lacks jurisdiction over the very action it sought to enforce?

The answer is a resounding no.

The CCEC contends that it has authority to impose penalties for failure to comply with

A.R.S. § 16-941(D). CCEC’s April 24, 2018 Complaint (“Compl.”) ¶¶ 5-6. The CCEC states

that it found reason to believe and eventually probable cause, that an advertisement LFAF aired

constituted an independent expenditure requiring LFAF to file independent expenditure reports.

Compl. ¶¶ 9, 12. Despite an Administrative Law Judge (“ALJ”) sustaining LFAF’s appeal, the

CCEC rejected the ALJ’s findings and proceeded to impose a civil penalty of $95,460.00 for

failing to comply with Arizona’s requirement to file independent expenditure reports. LFAF

appealed through the entire Arizona judicial system, but these appeals were dismissed on

timeliness grounds. Compl. ¶¶ 15-18.

Now, as a permissive collateral attack, LFAF challenges CCEC’s jurisdiction to impose

the $95,460.00 fine for LFAF’s advertisement campaign against Mayor Scott Smith in 2014.

STANDARD OF REVIEW

The CCEC lacks subject-matter jurisdiction to enforce its $95,460.00 penalty. This

1 Procedurally this case can be simplified as follows: Every court to hear this case has yet to make any finding on LFAF’s jurisdictional claim because those courts held they were without jurisdiction to hear any claim in the first instance. That being said, there can be no dispute that this Court has jurisdiction to potentially enforce a judgment against LFAF, and cognizant—and as explained herein—with that jurisdiction it now has the jurisdiction to dismiss CCEC’s enforcement action as void.

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Court should dismiss the Complaint pursuant to Ariz. R. Civ. P. 12(b)(6). Although well-

pleaded factual allegations are presumed true, legal assertions receive no deference and are

reviewed de novo. Harper v. State, 241 Ariz. 402, 404, 388 P.3d 552, 554 (App. 2016).

ARGUMENT

CCEC was created by statute and it is, therefore, limited by statute. A.R.S. § 16-955;

Pima Cnty. v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227, 119 P. 3d

1027, 1030 (2005) (“Because administrative agencies derive their powers from their enabling

legislation, their authority cannot exceed that granted by the legislature.”).

Arizona vested CCEC with authority to enforce the Clean Elections Act, codified at

A.R.S. §§ 16-940, et seq (the “Act”). The CCEC asserts that A.R.S. § 16-942 vests it with

jurisdiction to impose penalties on LFAF for its March and April 2014 advertisements. Compl.

¶5. The CCEC concluded that LFAF’s advertisement and subsequent failure to report violated

A.R.S. §§ 16-941 and 16-958.

It is black-letter law that “an administrative judgment may be attacked collaterally . . . .

where the jurisdiction of the administrative agency is questioned.” Gilbert v. Bd. of Med.

Exam’r, 155 Ariz. 169 (App. 1987); A.R.S. § 12-902(B). The Arizona Supreme Court was

very clear that a direct appeal was not an appropriate means of challenging jurisdiction in this

matter, but specifically did not extinguish LFAF’s ability to contest jurisdiction through

“alternative procedural means”—such as, “special action or as a defense to an enforcement

action.” Legacy Found. Action Fund v. Citizens Clean Elections Comm’n, 243 Ariz. 404, 406-

408, 408 P.3d at 830-32 (2018).

The CCEC lacks jurisdiction to enforce these provisions and, accordingly, its complaint

should be dismissed.

I. THE CCEC LACKS JURISDICTION BECAUSE LFAF IS NOT A CANDIDATE OR A CANDIDATE’S COMMITTEE.

The penalty provisions of Article 2 of the Act make clear that CCEC’s jurisdiction

extends only to expenditures “by or on behalf of any candidate.” A.R.S. § 16-942(B). Because

LFAF is not a candidate, and the CCEC dismissed allegations that LFAF’s speech was made in

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coordination with a candidate, the CCEC has no jurisdiction over LFAF’s speech.

The CCEC may not assess a penalty against LFAF because it has failed to identify the

candidate the advertisement was “by or on behalf of” and the “candidate or candidate’s

campaign account” that shall be “jointly and severally liable” for any civil penalty assessment.

A.R.S. § 16-942(B). To assess a penalty solely against LFAF is inharmonious with the Act’s

clear and specific language and exceeds the CCEC’s jurisdiction.

To the extent that the Act grants the CCEC enforcement authority, such grant is

expressly limited in A.R.S. §§ 16-956 and 16-957 to “any provision of this article” and does not

reach to allegations involving nonparticipating candidates or entities that are not candidates.

The CCEC is not allowed to manufacture its own jurisdiction, it must adhere to the specific

statute that defines its enforcement authority. That grant, as noted above, is found in A.R.S. §

16-942(B). Courts have held that when a specific statute coincides with a general statute, the

specific statute must be the controlling statute. See, e.g., Clouse v. State, 199 Ariz. 196, 199, 16

P.3d 757, 760 (2001) (“It is an established axiom of constitutional law that where there are both

general and specific constitutional provisions relating to the same subject, the specific provision

will control.”).

The CCEC relied on A.R.S. §16-957 as well as A.A.C. R2-20-109(F)(3) as its basis for

asserting jurisdiction over, and imposing a civil penalty against, LFAF for delinquent

independent expenditure reports. Both the statute and the regulation point to A.R.S. § 16-

942(B) as the sole means of assessing civil penalties. The CCEC, however, lacked the

jurisdiction to exact a civil penalty under A.R.S. § 16-942(B) (or any other statute for that

matter) because the statute’s enforcement provisions are clear in that they apply only to

“candidates” or organizations making expenditures “on behalf of any candidate.” A plain

language reading of the statutory section below clearly illustrates this jurisdictional limitation:

In addition to any other penalties imposed by law, the civil penalty for a violation by or on behalf of any candidate of any reporting requirement imposed by this chapter shall be one hundred dollars per day for candidates for the legislature and three hundred dollars per day for candidates for statewide office. The penalty imposed by this subsection shall be doubled if the amount not reported for a particular

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election cycle exceeds ten percent of the adjusted primary or general election spending limit. No penalty imposed pursuant to this subsection shall exceed twice the amount of expenditures or contributions not reported. The candidate and the candidate's campaign account shall be jointly and severally responsible for any penalty imposed pursuant to this subsection.

A.R.S. § 16-942(B) (emphasis added).

The principles of statutory construction are grounded in the goal of giving effect to the

Legislature’s intent, or in the case of the Act, the people’s intent. People’s Choice TV Corp. v.

City of Tucson, 202 Ariz. 401, 403 at ¶7, 46 P.3d 412, 414 (2012). It is only when the language

of a statute is ambiguous that principles of statutory construction are applied. Aros v. Beneficial

Ariz., Inc., 194 Ariz. 62, 66, 977 P.2d 784, 788 (1999). If a statute is unambiguous, the statute

is applied without applying such principles. Id.; see In the Matter of: Joel Fox dba SCA, 2009

AZ Admin, Hearings LEXIS 1307, 25-27 (at P32-P34) (holding that “[t]he County’s position is

not consistent with principles of statutory construction” when it interpreted statutory language

as contrary to legislative intent).

A.R.S. § 16-942(B) is not ambiguous and, therefore, only can be used to sanction a

candidate or an organization working “on behalf of” a candidate. Because LFAF is certainly

not a candidate and was not working “on behalf of” any candidate, the CCEC exceeded its

jurisdiction in seeking to penalize LFAF, an entity not subject to A.R.S. § 16-942(B).

Even if the language were to be deemed ambiguous, application of principles of

statutory construction require that the statutory language of “candidate” and “on behalf of any

candidate” have a meaning and purpose. To allow the CCEC to distort the language of its own

jurisdictional statute in an effort to expand its regulatory reach over a reporting requirement

rendered unenforceable by the U.S. Supreme Court would enable the CCEC to assert

jurisdiction without statutory authority. See Janson ex rel. Janson v. Christensen, 167 Ariz.

470, 471, 808 P.2d 1222, 1223 (1991) (“we follow fundamental principles of statuary

construction, the cornerstone of which is the rule that the best and most reliable index of a

statute’s meaning is its language and, when the language is clear and unequivocal, it is

determinative of the statute’s construction.”).

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The CCEC cannot simply conjure a contrary meaning for clear statutory language to

make an inapplicable statute magically applicable to organizations having no relation to

candidates. The CCEC’s interpretation is contrary to the principles of statutory construction

and its Enforcement Order does not meet the requirements of A.R.S. § 16-042(B). Guzman v.

Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173 (App. 1993); Darrah v. McClennen, 689

Ariz. Adv. Rep. 12, 337 P.3d 550 (App. 2014).

The absence of any clearly applicable penalty provision also supports LFAF’s

argument, outlined supra, that the CCEC lacks jurisdiction over this matter.

II. THE CCEC LACKS JURISDICTION BECAUSE THE STATUTES THROUGH WHICH THE CCEC ASSERTS AUTHORITY TO ENFORCE ARE NOT PART OF CLEAN ELECTIONS ACT.

The underlying Administrative Complaint submitted to the CCEC, which spawned this

action, alleged violations of A.R.S. §§ 16-901, 16-905, and 16-914.02, statutes which clearly

reside in Title 16, Chapter 6, Article 1 and fall outside the CCEC’s jurisdiction.

The CCEC does not have jurisdiction to enforce Article 1 of Title 16, Chapter 6.

Article 1 includes reporting requirements for independent expenditures that pre-dated the

adoption of the CCEC. See, e.g., A.R.S. § 16-915(F) (1997) (showing that independent

expenditures were reported to the Secretary of State at least as early as 1993). As clearly

provided in A.R.S. § 16-924, the provisions in §16-914.02 are subject to interpretation and

enforcement by the Arizona Secretary of State (an office and agency independent from the

CCEC) and by the Arizona Attorney General. When the voters enacted the Act by initiative

four years after the enactment of independent expenditure enforcement provisions under the

authority of the Secretary of State, they did not make any mention of altering, amending,

modifying or supplanting the enforcement regime already in place. “Because administrative

agencies derive their powers from their enabling legislation, their authority cannot exceed that

granted by the legislature” (or, in the case of the Act, the people who voted for the law). Pima

Cnty, 211 Ariz. at 227, 119 P. 3d at 1030.

The independent expenditure reporting provisions found in A.R.S. Title 16, Chapter 6,

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Article 2 provide that expenditure filings are submitted to the Secretary of State and the

Secretary is charged with supplying that information to the CCEC. These provisions were

implemented to provide the CCEC a means to track independent expenditure spending so that it

would be able to subsidize participating candidates for such expenditures.2 See Ariz. Free

Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2828-29 (2011). In 2011, the

U.S. Supreme Court struck down as unconstitutional the Act’s provision establishing the basis

for expenditure reporting to the CCEC. See Bennett, 131 S. Ct. at 2828-29 (ruling the Clean

Elections Act’s independent expenditure matching funds provision unconstitutional). In effect,

the Supreme Court’s ruling abolished the purpose for which the Act imposed the requirement

that the Secretary of State provide independent expenditure information to the CCEC. See

McComish v. Brewer, 2010 U.S. Dist. LEXIS 4931 (D. Ariz. Jan. 20, 2010) (describing the

operation of the Act, “The participating candidate will also receive matching contributions if

there are independent expenditures against the participating candidate or in favor of the non-

participating opponent.”) (internal quotations omitted). See also McComish v. Bennett, 611 F.

3d 510, 516 (9th Cir. 2010) (“If the participating candidate has a nonparticipating opponent . . .

whose expenditures combined with the value of independent expenditures . . . exceed the

amount of her or his initial grant, the participating candidate will receive matching funds . . . .”)

(emphasis added) (internal quotations omitted). As recognized by these courts, the sole reason

why the Act provided that the Secretary of State share information about independent

expenditures to the CCEC was to track the amount of independent expenditure money spent so

that participating candidates could be subsidized in accordance with the Act’s provisions.

2 The Act provided for subsidies to candidates choosing to opt-in to the statute’s public financing provisions. As originally adopted, but later declared unconstitutional, such candidates were given subsidies from the state for independent expenditures employed against such candidates. To track these expenditures, the Act provided a registration and reporting mechanism (in addition to the one already existing under Title 16, Chapter 6, Article 1) for the CCEC. Because such purpose is no longer constitutional, such a duplicative registration and reporting requirement exceeds CCEC’s statutory authority.

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As a result, after Bennett, the CCEC is without a legal foothold to assert jurisdiction

over the independent expenditure reporting requirements. Bennett, 131 S. Ct. at 2828-29 (“the

whole point of the First Amendment is to protect speakers against unjustified government

restrictions on speech, even when those restrictions reflect the will of the majority.”).

Article 1 of Title 16, Chapter 6 includes a detailed statutory definition of independent

expenditures, which only the Secretary of State is tasked with enforcing. The Secretary

enforces an extensive scheme for campaign finance reporting requirements, in coordination

with the Attorney General, County Attorney, or City Attorney, depending on the geographical

reach of the candidate at issue. As a result, the Secretary of State is charged with enforcing an

interlocking web of statutes under Article 1 that impose an exhaustive regulatory structure over

independent expenditures and the groups or individuals who make them.

Because independent expenditures already are subject to registration and reporting

requirements in Article 1, which are enforced by the Arizona Secretary of State, Article 2’s

requirements (to the extent they are independent at all from Article 1) are duplicative and any

attempt to make such requirements enforceable by the CCEC, through rulemaking or otherwise,

impermissibly deviates from the statute’s original intent and purpose, and is the result of an

agency improperly seeking to expand its jurisdiction.3 “Because administrative agencies derive

their powers from their enabling legislation, their authority cannot exceed that granted by the

legislature” (or, in the case of the Clean Elections Act, the people who voted for the law). Pima

Cnty., 211 Ariz. at 227, 119 P. 3d at 1030.

It simply cannot be the case that the citizens of Arizona intended for two different

governmental agencies each to possess equal ability to reasonably interpret and enforce the

same exact same definition of independent expenditures and the associated reporting regime,

3As evidence of the CCEC’s attempt to provide itself broader authority, the CCEC, in the summer and fall of 2013, and just months before LFAF engaged in the challenged speech, implemented new regulations giving the CCEC authority beyond that which is contained in the text of the Act. See Ariz. Admin Reg./Secretary of State, Vol. 19 Issue 45 (Nov. 8, 2013). This 2013 regulation is the first time in the history of the CCEC that it attempted to issue a regulation purporting to grant itself jurisdiction over entities other than candidates, and this set of regulations exceed the CCEC’s statutory authority.

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thereby creating the possibility of inconsistent outcomes in the context of potential civil

violations. It is the Secretary of State who enforces the exhaustive requirements contained in

Arizona’s independent expenditure statute, including what constitutes express advocacy.

LFAF is the unfortunate recipient of just such inconsistent determinations. While the

CCEC used the Administrative Complaint as justification to impose penalties against LFAF,

the Secretary, analyzing the same facts, found no violation.

The underlying Complaint also alleges that LFAF’s actions violated provisions of the

Act, namely A.R.S. §§ 16-941(B), (C)(2), (D), and 16-958(A), (B). The CCEC cannot

establish authority to draw LFAF under its jurisdiction through A.R.S. § 16-941(B) since the

statute defers enforcement to A.R.S. §§ 16-905 (J)-(M) and 16-924. See A.R.S. § 16-941(B)

(“[a]ny violation of this subsection [reducing non-participating contribution limits by 20%]

shall be subject to the penalties and procedures set forth in section 16-905, subsections J

through M and section 16-924.” (Emphasis added.)). The CCEC has no enforcement authority

under A.R.S. § 16-941(C)(2) because the statute’s provision is a general proscription provision

and does not confer a substantive grant of authority. See A.R.S. § 16-941(C)(2) (a

nonparticipating candidate “[s]hall continue to be bound by all other applicable election and

campaign finance statutes and rules, with the exception of those provisions in express or clear

conflict with this article.”).

III. THE CCEC LACKS JURISDICTION BECAUSE LFAF’S ADVERTISEMENT DOES NOT CONSTITUTE EXPRESS ADVOCACY.

Even if this Court finds that the CCEC has jurisdiction over LFAF despite it being a

committee without a connection to a candidate, and even if this Court finds that the CCEC has

jurisdiction over non Clean Election Act provisions, the CCEC still lacks jurisdiction because,

under the First Amendment, LFAF’s advertisement does not constitute express advocacy.

A First Amendment defense is properly brought in a Motion to Dismiss. See Citizen

Publ. Co. v. Miller, 210 Ariz. 513 (Ariz. 2005). As will be shown, the CCEC’s continued

attempts to hold LFAF liable for its clearly protected speech is in violation of the First

Amendment to the United States Constitution.

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a. The First Amendment Requires that Tests Used to Distinguish Between Campaign Speech and Issue Speech Must Be Clear and Not Ambiguous.

The First Amendment to the United States Constitution declares, “Congress shall make

no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The protections of the First

Amendment—through the Fourteenth Amendment—prevent the States from violating their

residents’ free speech rights. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).

The central purpose of the First Amendment “was to protect the free discussion of

governmental affairs.” First Nat'l Bank v. Bellotti, 435 U.S. 765, 776-77 (1978). This is so

because speech about issues is “indispensable to decision making in a democracy.” See id. 435

U.S. at 777. Consequently, the First Amendment at least guarantees “the liberty to discuss

publicly and truthfully all matters of public concern without previous restraint or fear of

subsequent punishment.” Id. 435 U.S. at 776. In fact, the First Amendment enshrines our

nation’s national commitment “to the principle that debate on public issues should be

uninhibited, robust, and wide-open.” Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S.

449, 467, 127 S. Ct. 2652, 2665, 168 L.Ed.2d 329 (2007) (citing Buckley v. Valeo, 424 U.S. 1,

14, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)).

The Supreme Court, therefore, has ruled that tests to determine whether speech

constitutes political advocacy that may be subject to regulation must be clear and not

ambiguous. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 336, 130 S. Ct. 876,

896, 175 L. Ed. 2d 753 (2010) (rejecting FEC’s 11 factor test and stating that this has the effect

of putting the speaker in the position of either refraining from speech or putting speech at the

mercy of how the FEC applies its 11 factor test to the speech); Buckley, 424 U.S. at 43

(upholding independent expenditure definition statute so long as it captured the following

activity that included only these magic words:4 “vote for, elect, support, cast your ballot for,

4 Even under the more expansive Furgatch standard, there must be some explicit plea for action that that is susceptible to only one interpretation, namely, to vote for or against a specific candidate. FEC v. Furgatch, 807 F.2d 857, 864 (9th Cir. 1987).

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Smith for Congress, vote against, defeat, reject”).

The line between express advocacy and issue advocacy must be clear to provide

“security for free discussion” and therefore cannot put the speaker “wholly at the mercy of the

varied understanding of his hearers.” Fed. Election Comm'n, 551 U.S. at 468-69. The test

must, therefore, be objective and it “must eschew the open-ended rough-and-tumble of factors,

which invit[es] complex argument in a trial court and a virtually inevitable appeal.” Id. at 469

(internal citation and quotation marks omitted) (alteration in original). Such a test that puts the

speaker at the mercy of the hearers and does not provide clear rule that provides security for

free discussion “will unquestionably chill a substantial amount of political speech.” Id. To

prevent this result, an express advocacy statute can only capture that speech that “is susceptible

of no reasonable interpretation other than as an appeal to vote for or against a specific

candidate.” Id. at 470. Thus, an advertisement that focuses on an issue, exhorts the public to

take a position on that issue, and urges the public to contact the official to also adopt that

position on the issue, and further does not otherwise mention an “election, candidacy, political

party, or challenger; and [] do[es] not take a position on a candidate's character, qualifications,

or fitness for office” does not constitute express advocacy but is, in fact, an issue

advertisement. See id.

b. CCEC’s Application of Arizona’s Express Advocacy Statute to LFAF’s Speech Violates the First Amendment.

Considering these principles, the advertisement does not constitute express advocacy

and, therefore, CCEC is without jurisdiction to enforce its penalty.

The CCEC’s analysis applied to LFAF’s advertisement was ambiguous and, therefore,

unconstitutional. The advertisement described Mayor Smith as “Obama’s Mayor” because,

while Smith was serving as the President of the U.S. Conference of Mayors, the Conference

supported profligate spending, limits on Second Amendment rights, Obamacare, and the

regulation of carbon emissions. The advertisement discusses issues of: government spending,

second amendment rights, and the regulation of carbon emissions. The advertisement then

informs the listeners that these policies are wrong for Mesa. The advertisement closes with an

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exhortation to the public to call Mayor Smith and tell him to support policies that are good for

Mesa. See Transcript of LFAF’s Advertisement, attached hereto as Exhibit “A.” It also aired

simultaneously with ads in Baltimore and Sacramento to address the incoming officers of the

U.S. Conference of Mayors. Furthermore, the advertisement never mentions Mayor Smith as a

gubernatorial candidate, as a Republican, that a primary election is approaching, or that Mayor

Smith possessed bad character or was otherwise unqualified for office. Compare id.; with Fed.

Election Comm'n, 551 U.S. at 470 (advertisement was not express advocacy where it discussed

an issue, took a position on an issue, exhorted the public to adopt that position, and exhorted

the public to call their official without discussing an election, campaign, candidate, or saying

that the official had a bad character or was otherwise unfit to serve office). Both the ALJ and

the Secretary of State concluded that LFAF’s advertisement did not constitute express

advocacy.

One thing is for sure, this advertisement is not susceptible to only one reasonable

interpretation that it is express advocacy. Therefore, it is not express advocacy. Accordingly,

this Court should find that the advertisement does not constitute an independent expenditure

and, therefore, CCEC does not have jurisdiction to impose a fine.

To hold otherwise would permit precisely the type of analysis that Fed. Election

Comm'n sought to avoid. If the CCEC’s ruling stands, it will require a case-by-case

determination and mini-trials on all advertisements to determine if they constitute express

advocacy. See Citizens United, 558 U.S. at 329. The First Amendment eschews “the open-

ended rough-and-tumble of factors,”—e.g., using the fact that an advertisement discusses

national issues rather than local issues “invit[es] complex argument in a trial court and a

virtually inevitable appeal.” Id. at 336 (quoting Fed. Election Comm'n, 551 U.S. at 469)

(alteration in original).

The CCEC—like the FEC—applied an ambiguous test against LFAF’s advertisement,

aired in 2014, to determine whether LFAF’s advertisement was issue advocacy or express

advocacy, subject to a nearly $100,000 fine. The First Amendment needs breathing room to

survive and it cannot tolerate case-by-case determinations. See id. at 329.

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CONCLUSION

For the aforementioned reasons, this Court should grant Legacy Foundation Action

Fund’s Motion to Dismiss the Complaint.


Bergin, Frakes, Smalley & Oberholtzer, PLLC

/s/ Brian M. Bergin Brian M. Bergin 4343 East Camelback Road, Suite 210 Phoenix, Arizona 85018

Attorneys for Plaintiff Holtzman, Vogel, Josefiak, Torchinsky, PLLC

/s/ Jason Torchinsky Jason Torchinsky 45 N. Hill Drive, Suite 100 Warrenton, VA 20186 Co-Counsel for Plaintiff Admitted Pro Hac Vice

ORIGINAL of the foregoing e-filed this 11th day of July, 2018 at: Clerk of the Court Maricopa County Superior Court 201 W. Jefferson Phoenix, Arizona COPY of the foregoing mailed this 11th day of July, 2018 at: Osborn Maledon, P.A. Mary R. O’Grady Joseph N. Roth Nathan T. Arrowsmith 2929 N. Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 By: /s/ Iulia Taranu

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